Opinion
July 10, 1980
Appeal from the Steuben Supreme Court.
Present — Cardamone, J.P., Schnepp, Callahan, Witmer and Moule, JJ.
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 N.Y.2d 241, 262-263; Central Trust Co., Rochester v. Goldman, 70 A.D.2d 767, app dsmd 47 N.Y.2d 1012; Lurman v. Jarvie, 82 App. Div. 37, 46, affd 178 N.Y. 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 N.Y.2d 820; Drago v. Buonaguiro, 46 N.Y.2d 778; Williams v. Williams, 23 N.Y.2d 592, 596) and, therefore, attorney's fees are not recoverable in this action.