FISCHER v. Chevra Machziket H'Shechuna, Inc., et al., Defendants. (2003)

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered on or about July 23, 2002, which, in this malicious prosecution action, granted plaintiffs' application for a protective order preventing defendant Crown Heights Jewish Community Council, Inc. from inquiring, during the deposition of plaintiff David Fischer, into the factual allegations made in the underlying RICO action, unanimously affirmed, without costs.

Plaintiff Fischer alleges that defendants maliciously prosecuted him when, in 1992, they commenced a RICO action against him, which action was dismissed on the merits (295 A.D.2d 227, 228, 743 N.Y.S.2d 716).   While defendants seek to depose Fischer respecting the factual allegations made in the RICO action to buttress their contention that the action's dismissal was attributable to fraud and should thus be deemed unavailing as an element of Fischer's malicious prosecution claim (see Munoz v. City of New York, 18 N.Y.2d 6, 10, 271 N.Y.S.2d 645, 218 N.E.2d 527), defendants' allegations of lately discovered fraud are insufficient to justify the inquiry sought.

We have considered defendants' remaining contentions and find them unavailing.