A New York Personal Injury Lawyer said that, plaintiff, an attorney who was sued by his client’s adversary, respondent herein argues that New York has never required special injury as an element of a malicious prosecution cause of action. Our review of New York case law indicates otherwise, and we decline to overrule those cases that have instilled proof of special injury as a necessary component of a malicious prosecution claim. Indeed, the certified question assumes the existence of the special injury requirement and focuses on what adverse consequences resulting from a civil suit could amount to a special injury. We thus perceive the certified question to be asking whether New York law limits this special injury to proof that a provisional remedy was imposed in a prior civil action.
A New York Premises Liability Lawyer said that, although New York cases do state that interference with person or property the usual consequences of a provisional remedy constitute special injury, New York law does not confine special injury to the imposition of a provisional remedy.
The issue in this case is whether an attorney, sued by his client’s adversary for the purpose of interfering with the attorney’s zealous representation of his client, and whose representation is actually undermined by the suit, may satisfy the required element of special injury in an action for malicious prosecution of a civil lawsuit under New York law where no provisional remedy is had against him.
Notwithstanding this clarification, under the specific facts given to this Court on the certified question, plaintiff has not shown the requisite added grievance. Plaintiff’s allegations, as characterized by the Second Circuit, do not allow the inference that his representation was actually undermined. Although other cases certainly may present situations where a lawyer sued will have his or her ability to represent a client sufficiently undermined to allow an inference of special injury, the factual allegations of injury here, which we are bound to accept, are not enough to constitute such special injury.
There is no doubt that a compelling argument can be made to consign the special injury requirement to the history books. The requirement had its genesis in England, and the original reasons for it do not predominate in this country. In England, a defendant need not worry about being saddled with the costs of a successful defense. The English rule is that generally the loser must pay the winner’s attorney’s fees. Thus, an English plaintiff who brings a frivolous suit does so at the peril of paying his adversary’s litigation expenses. It was only where an English defendant endured some special injury that the action for malicious prosecution was needed. Otherwise, the English defendant really did not suffer redress able harm.
On this side of the Atlantic, the rule on fee allocation comes with no built in disincentive to frivolous litigation. In American courts, each side must typically bear its own expenses. Perhaps as a result, the Second Restatement of Law of Torts finds no place for the special injury requirement. Moreover, scholars have generally been critical of the inclusion of the element of special injury in the law of malicious prosecution.
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