The defendant entered into negotiations with the plaintiff to buy the latter’s house. When the-plaintiff refused to convey the property, the defendant brought an action for specific performance. In that action a lis pendens was filed against the property, and the plaintiff here (defendant there) moved for summary judgment on the ground that no *345writing signed by Mm evidenced the sale. The motion was denied, but on appeal it was reversed (Gross v. Chappelle, 21 A D 2d 679).
The instant action has been said to be for malicious prosecution and Special Term so described it. There is a lack of uniformity in the common-law jurisdictions as to whether an action will lie for the bringing of a civil suit improperly motivated or without belief of the person suing in the soundness of his claim (Prosser, Torts [3d ed.], § 114, p. 870). This State has always held to the principle that no cause of action accrues to the successful defendant (see Burt v. Smith, 181 N. Y. 1, 5; Sachs v. Weinstein, 208 App. Div. 360; Paul v. Fargo, 84 App. Div. 9). The reasoning behind such a stand has lost none of its cogency since the rule was last iterated. Our public policy is very strong in allowing access to the courts to all parties. Fear of reprisal beyond the imposition of costs should not be allowed to act as a deterrent. And even proof that costs will not make the defendant whole has not been allowed to overcome this policy (Paul v. Fargo, supra). Furthermore, it is undoubted that our policy of free access has placed a large and growing burden on our courts. If every successful defendant could turn around and sue the plaintiff and, by a liberal use of the word “malicious ” state a cause of action, a never ending source of new litigation would have a forum. Questions once thought to have been put to rest could be relitigated almost without limit. Judgment should mark the conclusion of the disputes between the parties and not be an invitation to further litigation.
It is, of course, otherwise where a plaintiff invokes an attachment, an order of arrest or some other form of provisional remedy which interferes with the person or property of the defendant. TMs does give rise to a cause of action. But this is for malicious abuse of process. The distinction is more than one of nomenclature. In a true action for malicious prosecution, meaning one arising out of a criminal prosecution, the rule is that the action lies where the plaintiff can show that the prosecution was initiated without probable cause (Halsey v. New York Soc., 234 N. Y. 1). In an action for malicious abuse of process the plaintiff’s obligation is to show that he was damaged by the execution of the process and that the process was employed maliciously, that is, not for its legitimate purpose but to harm the plaintiff in the instant action (Hauser v. Bartow, 273 N. Y. 370; Dean v. Kochendorfer, 237 N. Y. 384). “ If the process is employed from a bad or ulterior motive, the gist of the wrong is to be found in the uses wMch the party procuring the process to issue attempts to put it. If he is content *346to use the particular machinery of the law for the immediate purpose for which it was intended, he is not ordinarily liable, notwithstanding a vicious or vindictive motive ” (Harper, Law of Torts, § 372, p. 593, quoted with approval in Hauser v. Bartow, supra, p. 373).
There is some doubt whether the filing of a Us pendens is the use of a process as contemplated, as a Us pendens is notice only and not a lien (Hayes v. Nourse, 114 N. Y. 595). Smith v. Smith (56 How. Prac. 316) is cited as an authority for the proposition that it is, but the holding is doubtful.* However, it is conceivable that the filing of a Us pendens could be held to be the use of process and hence the subject of abuse. Assuming this to be the case, it would be incumbent on one seeking to recover for the use of a Us pendens to show that it was used maliciously. It cannot be denied that a lis pendens is a proper legal device in an action for specific performance (CPLR art. 65) and in fact a necessary step if the action is not to be frustrated by a sale of the property before judgment (CPLR 6501).
To paraphrase the illustration used by the Court of Appeals in the Hauser case (see p. 374), if the defendant filed the Us pendens to prevent the sale of the property, he did not abuse the process and it makes no difference what his motive was; if he used it to extort money from the plaintiff, then he did not use it for the purpose intended by the law and he would be liable. And it has been held that the filing of a Us pendens without ulterior motive as so defined is not actionable (Bronstein v. Dayton Peninsula Corp., 11 A D 2d 1036).
The complaint specifically alleges that the Us pendens was filed to prevent a conveyance during the pendency of defendant’s action. As this is the purpose for which the so-called process is intended, the allegation negates plaintiff’s cause of action and the complaint should have been dismissed. If the motion is regarded as one for summary judgment, the affidavits reveal an even more solid case for the defendants here. The original action grew out of a transaction which was agreed upon by parol. A close question was presented as to whether a deed had been executed and delivery intercepted when a better offer was received. Even were this action based on lack of probable cause, there is nothing in the affidavits to substantiate the conclusory adjectives in the complaint.
The complaint should be dismissed.
*347Breitel, J. P., and McNally, J., concur with Capozzoli, J.; Steuer, J., dissents in opinion in which Stevens, J., concurs.
Order, entered on March 11,1966, affirmed, with $50 costs and disbursements to abide the event.
The ease was decided primarily on the ground that an action lies for malicious prosecution of a civil case. The reasoning was that in England the action lay until the introduction of costs. As costs in this State are inadequate, it should continue here. As indicated, this reasoning has not prevailed.