Robson & Woese, Inc. v. Village of Painted Post ( 1980 )

Order unanimously reversed, with costs, and defendants’ motion for summary judgment granted in accordance with the following memorandum: In the absence of a sufficient cause of action against a defendant for tortious acts requiring plaintiff to defend a specious action, legal expenses incurred in such defense are not recoverable (City of Buffalo v Clement Co., 28 NY2d 241, 262-263; Central Trust Co., Rochester v Goldman, 70 AD2d 767, app dsmd 47 NY2d 1012; Lurman v Jarvie, 82 App Div 37, 46, affd 178 NY 559). Thus, even had plaintiff established a cause of action in negligence, it could not recover attorney’s fees from defendant. A fortiori, such fees are not recoverable when the negligence action has been dismissed, without appeal, as in this case. Thus, also, where plaintiff has failed to plead essential elements of a cause of action for malicious prosecution, abuse of process or prima facie tort, as here, a cause of action is not stated (Belsky v Lowenthal, 47 NY2d 820; Drago v Buonaguiro, 46 NY2d 778; Williams v Williams, 23 NY2d 592, 596) and, therefore, attorney’s fees are not recoverable in this action, (Appeal from order of Steuben Supreme Court—summary judgment.) Present—Cardamone, J. P., Schnepp, Callahan, Witmer and Moule, JJ.