| Andaloro v Charles |
| 2018 NY Slip Op 06383 |
| Decided on September 28, 2018 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on September 28, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
976 CA 18-00244
v
DAISY CHARLES, DEFENDANT, AND PATRICIA FLOYD-ECHOLS, DEFENDANT-RESPONDENT.
O'HARA, O'CONNELL & CIOTOLI, FAYETTEVILLE (STEPHEN CIOTOLI OF COUNSEL), FOR PLAINTIFF-APPELLANT.
FERRARA FIORENZA P.C., EAST SYRACUSE (HEATHER M. COLE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Onondaga County (Gregory R. Gilbert, J.), entered August 23, 2017. The order granted the motion of defendant Patricia Floyd-Echols for summary judgment dismissing the complaint against her.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff appeals from an order that granted the motion of Patricia Floyd-Echols (defendant) for summary judgment dismissing the complaint against her. We reject plaintiff's sole contention on appeal that Supreme Court erred in determining that defendant established as a matter of law that plaintiff did not suffer special damages, a requisite element of plaintiff's malicious prosecution cause of action (see generally Thyroff v Nationwide Mut. Ins. Co., 57 AD3d 1433, 1435 [4th Dept 2008], appeal dismissed 12 NY3d 911 [2009], lv denied 13 NY3d 710 [2009]; Rossi v Attanasio, 48 AD3d 1025, 1028-1029 [3d Dept 2008]). Defendant established that the allegations of damages contained in plaintiff's complaint and deposition testimony were insufficient to constitute a "concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit" (Engel v CBS, Inc., 93 NY2d 195, 205 [1999]) and plaintiff failed to raise a triable issue of material fact in response thereto. In light of our conclusion, we need not address defendant's alternative bases for affirmance (see generally Cleary v Walden Galleria LLC, 145 AD3d 1524, 1526 [4th Dept 2016]).
Entered: September 28, 2018
Mark W. Bennett
Clerk of the Court