Lieberman v. Roadside 3 Hour Cleaners, Inc.

— In an action to recover damages for defendants’ failure to return bailed property after demand, plaintiff appeals from an order of the Supreme Court, Westchester County, entered September 23, 1980, which denied her motion for summary judgment. Defendants cross-appeal from so much of the same order as failed to grant them costs on the motion. Order modified, on the law, by granting plaintiff’s motion for summary judgment to the extent of dismissing defendants’ counterclaims for malicious prosecution and libel. As so modified, order affirmed, without costs or disbursements. Since the action at bar has not terminated in the defendants’ favor, which is an essential element of their cause of action for malicious prosecution (see Ellman v McCarty, 70 AD2d 150, 155), that cause of action must be dismissed as premature. The libel claim, based upon the indorsement on the summons warning defendants that their failure to appear could subject them to “arrest and imprisonment” must also be dismissed. The warning was clearly germane to this litigation, and therefore enjoys an absolute privilege (see Moore v Manufacturer’s Nat. Bank of Troy, 123 NY 420, 425-426; Zefferer v Campbell, 3 AD2d 856). Under the circumstances presented, Special Term’s failure to grant defendants’ request for costs on the plaintiff’s motion did not constitute an abuse of discretion. Titone, J.P., Gulotta, Cohalan and O’Connor, JJ., concur.