Sokol v. Sofokles

• Decision Date: 11 January 1988
• Citation: 523 N.Y.S.2d 155,136 A.D.2d 535
• Parties: David J. SOKOL, Appellant, v. Patricia Hopper SOFOKLES a/k/a Patricia D. Hopper, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 155

523 N.Y.S.2d 155

136 A.D.2d 535

David J. SOKOL, Appellant, v. Patricia Hopper SOFOKLES a/k/a Patricia D. Hopper, et al Respondents.

Supreme Court, Appellate Division Second Department.

Jan. 11, 1988.

David J. Sokol, pro se.

Richard Clarino, Newburgh, for respondent Patricia Hopper Sofokles a/k/a Patricia D. Hopper.

Drake, Sommers, Loeb, Tarshis & Catania, P.C., Newburgh (Joseph A. Catania, Jr., of counsel), for respondents Greenblatt, Forrester & Axelrod, P.C., Greenblatt & Axelrod, P.C., Seymour Greenblat, Michael H. Forrester, P.C., Alan J. Axelrod and James W. Winslow.

Before MANGANO, J.P., and BROWN, LAWRENCE and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for malicious prosecution, abuse of process and prima facie tort, the plaintiff appeals from (1) an order of the Supreme Court, Orange County (Ingrassia, J.), dated January 14, 1987, which granted the defendants' motion to dismiss the complaint for failure to state a cause of action, and (2) a judgment of the same court, dated February 4, 1987, entered thereon.

ORDERED that the appeal from the order is dismissed without costs or disbursements; and it is further,

ORDERED that the judgment is affirmed, without costs or disbursements.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1] ).

The appellant's complaint was properly dismissed as squarely within the rule of Drago v. Buonagurio, 89 Misc.2d 171, 391 N.Y.S.2d 61, revd. 61 A.D.2d 282, 402 N.Y.S.2d 250, revd. 46 N.Y.2d 778, 413 N.Y.S.2d 910, 386 N.E.2d 821, on remand 109 Misc.2d 192, 439 N.Y.S.2d 818, affd. 89 A.D.2d 682, 454 N.Y.S.2d 37, lv. denied 57 N.Y.2d 609, 457 N.Y.S.2d 1025, 443 N.E.2d 494. Briefly, the appellant, a dentist, performed root canal work on the respondent patient. The respondent patient refused to remit payment and the appellant threatened suit. Prior to commencement of this action, the respondent patient, by the respondent attorneys, instituted an action to recover damages for dental malpractice. That action was dismissed for failure to prosecute. Thereafter the appellant commenced the instant action seeking damages for malicious prosecution, abuse of process and prima facie tort. The appellant has no cognizable claim sounding in malicious prosecution as the mere service of a summons and complaint without further interference from some provisional remedy does not rise to the level of malicious prosecution ( Molinoff v. Sassower, 99 A.D.2d 528, 471 N.Y.S.2d 312). Moreover, the appellant cannot establish that he received a favorable determination in the prior action as the dismissal was not on the merits (see, CPLR 3216[a] ). Further, the appellant can state no cause of action to recover damages for abuse of process as he was not subject to the wrongful use of a provisional remedy ( Williams v. Williams, 23 N.Y.2d 592, 596, 298...