Bornstein v. Levine

Order, following reargument, denying motion to dismiss the first and second causes of action in the complaint modified, on the law, to dismiss the second cause of action as insufficient, with leave to replead, and the order is otherwise affirmed, with costs to appellant. The first cause of action is sufficient because it depends upon processes, to wit, executions, issued without prior judicial approval, which were void, as eventually resolved by the courts (Levine v. Bornstein, 4 N Y 2d 241). The second cause of action, however, is insufficient. It depends upon the issuance of third-party orders by a court, such orders being in the nature of a summary proceeding to discover. Under such circumstances, the party having first obtained judicial approval, an action in the nature of trespass does not lie. (Fischer v. Lang bein, 103 N. Y. 84 ; Solomon v. Baar, 168 Misc. 439 , affd. 255 App. Div. 849 .) Not to be confused is the situation which obtains with respect to process irregularly issued, in which event it is voidable, and an action for trespass ab initio may thereafter lie. (See, e.g., Day v. Bach, 87 N. Y. 56 ; Lyon v. Yates, 52 Barb. 237 ; 7 C. J. S., Attachment, § 503 et seq.) In the absence of allegation and proof of lack of probable cause an action in the nature of malicious prosecution does not lie. Plaintiff, however should be entitled to replead the cause of action, if he can. Concur — Breitel, J. P., M. M. Frank, Yalente, McNally and Bergan, JJ.