Mastic Fuel Service, Inc. v. Van Cook
| Decision Date | 06 December 1976 |
| Citation | 55 A.D.2d 599,389 N.Y.S.2d 388 |
| Parties | MASTIC FUEL SERVICE, INC., Respondent, v. Donald F. VAN COOK et al., Individually and as partners d/b under the name of Kelly, Luglio & Van Cook, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Kelly, Luglio & Van Cook, Deer Park (Louis E. Mazzola, Deer Park, of counsel), appellant pro se and for the other appellants.
Tilles & Bronchick, Melville, for respondent (no brief filed).
Before HOPKINS, Acting P.J., and COHALAN, SHAPIRO and SUOZZI, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages predicated upon the unlawful use of execution and malicious prosecution, defendants appeal from an order of the Supreme Court, Suffolk County, dated June 8, 1976, which denied their motion to dismiss the complaint for failure to state a cause of action.
Order affirmed, without costs or disbursements.
Plaintiff's complaint sufficiently established a cause of action for malicious prosecution and abuse of process. The defendants were given notice of the transactions to be proved and of the material elements of each cause of action (see CPLR 3013). Attorneys' fees are recoverable as a measure of damages in tort actions where malice is an element of the tort (see 13 N.Y. Jur., Damages, § 145).
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