ANDALORO v. Patricia Floyd–Echols, Defendant–Respondent. (2018)

MEMORANDUM AND ORDER

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 A.D.3d 1433, 1435, 870 N.Y.S.2d 666 [4th Dept. 2008], appeal dismissed 12 N.Y.3d 911, 884 N.Y.S.2d 689, 912 N.E.2d 1070 [2009], lv denied 13 N.Y.3d 710, 2009 WL 3427956 [2009];  Rossi v. Attanasio, 48 A.D.3d 1025, 1028–1029, 852 N.Y.S.2d 465 [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 N.Y.2d 195, 205, 689 N.Y.S.2d 411, 711 N.E.2d 626 [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 A.D.3d 1524, 1526, 44 N.Y.S.3d 305 [4th Dept. 2016] ).