STRUVE v. BINGHAM III (1997)

Order, Supreme Court, New York County (Beverly Cohen, J.), entered June 27, 1997, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

 In this action for malicious prosecution, plaintiff failed to establish either a termination of the prior action in her favor or an absence of probable cause to support that action (see, Butler v. Ratner, 210 A.D.2d 691, 693, 619 N.Y.S.2d 871, lv. dismissed 85 N.Y.2d 924, 627 N.Y.S.2d 325, 650 N.E.2d 1327).   Since the order of dismissal did not specify that the libel action was dismissed on the merits, the dismissal for failure to prosecute pursuant to CPLR 3216(a) was not a determination on the merits in plaintiff's favor (see, MacFawn v. Kresler, 88 N.Y.2d 859, 644 N.Y.S.2d 486, 666 N.E.2d 1359;  Sokol v. Sofokles, 136 A.D.2d 535, 523 N.Y.S.2d 155).  Nor did plaintiff show an absence of probable cause supporting the prior action where this Court had upheld a preliminary injunction in favor of defendant herein on the grounds that “the undisputed evidence was sufficient to demonstrate a likelihood of [defendant's] ultimate success” (Bingham v. Struve, 184 A.D.2d 85, 89, 591 N.Y.S.2d 156;  see also, Mager v. Seril, 204 A.D.2d 205, 612 N.Y.S.2d 30).

MEMORANDUM DECISION.