Whether, in an action for malicious prosecution of a civil lawsuit, New York limits the requirement of special injury to proof that a provisional remedy was imposed in a prior civil action.
No. A claim of malicious prosecution in New York still requires a showing of special injury. However, the injury requirement may also be satisfied by a showing of an added grievance that rises to a sufficient level of interference with person, property or business.
The New York Court of Appeals answers a certified question of the United States Court of Appeals for the Second Circuit.
Plaintiff Engel, an attorney, had commenced a counterclaim against CBS on behalf of his client the rock band Boston and its lead vocalist, Scholz. During the pendency of that action, Engel helped negotiate a contract between a rival record company, MCA, and Scholz. Subsequently, CBS filed suit against MCA, Scholz, and Engel alleging breach of contract and copyright infringement. Although Engel was later dismissed as a defendant, he claims that the CBS suit was instituted to undermine his representation and led to certain damages. Engel sued CBS and others in federal court for malicious prosecution. This certified question arose from the malicious prosecution suit.
The certified question centers on the interpretation of the special injury requirement of a New York malicious prosecution claim. Engel asserted that the special injury element was not required in New York.
Although special injury is in some ways an historic anachronism, the Court of Appeals indicates that it is still a required element in a New York malicious prosecution claim. In fact, the requirement's competing policy concerns of providing court access and avoiding extended litigation are still important today. While special injury is not confined to the imposition of provisional remedies, Plaintiff's claimed injuries, as determined by the Second Circuit, do not constitute an added grievance sufficient to reach the required level of interference with person, property or business. Additionally, the Court declined to create a specific application of the added grievance requirement with respect to attorney-client interference.
Prepared by the liibulletin-ny Editorial Board.