WEB MANAGEMENT LLC v. SPHERE DRAKE INSURANCE LTD (2003)

Order, Supreme Court, New York County (Ira Gammerman, J.), entered February 13, 2002, which granted defendants' motion to dismiss plaintiff's complaint for malicious prosecution pursuant to CPLR 3211(a)(7), unanimously affirmed, with costs.

Plaintiff's allegation that the underlying action brought against it by defendants was dismissed by the Southern District Court pursuant to Federal Rules of Civil Procedure rules 9(b) and 12(b)(6)(Odyssey Re [London] Ltd. v. Stirling Cooke Brown Holdings Ltd., 85 F.Supp.2d 282, affd. 2 Fed.Appx. 109), was properly held insufficient to plead that the underlying action had been commenced without probable cause.   Without an adequate allegation of lack of probable cause the complaint for malicious prosecution was not sustainable (see Burt v. Smith, 181 N.Y. 1, 5-6, 73 N.E. 495).   Contrary to plaintiff's contention, it may not be inferred from the dismissal of the underlying action alone that defendants did not have probable cause for the action's commencement, i.e., that they did not have an objectively reasonable belief that plaintiff was a co-conspirator with defendants Stirling Cooke Brown Holdings Limited and Euro International Underwriters and others in a fraudulent scheme to retrocede underpriced reinsurance to Odyssey Re (London), Limited, now known as Sphere Drake Insurance, Ltd.