That said, however, it seems clear that New York law has deemed special injury to be a necessary consequence of a malicious prosecution. In this regard, the parties make much of footnote two in the case. It states: “Additionally, it might be noted that an action for malicious prosecution will not lie in this situation because there has been no interference with plaintiff’s person or property”. In this case however, was not a malicious prosecution case. That case concerned abuse of process and libel. Plaintiff contends that the dicta in Williams merely provides a toehold from which we cannot climb to the conclusion that New York requires proof of special injury, especially in light of the fact that the original reason for the heightened injury requirement did not fully transplant itself here from England.
This argument, however, downplays cases from the turn of the century which strongly suggest the existence of such a requirement in New York law, and moreover, ignores more recent jurisprudence which cements its existence with sound reasoning and countervailing policy concerns.
Moreover, the defendant who defeats a frivolous civil claim is not without some possibility of recovering legal expenses. The courts’ administrative rules permit many courts, in the exercise of discretion, to award fees and costs and to impose sanctions for frivolous conduct. Such recourse, though in some cases not guaranteed, gives additional viability to the element of special injury as part of a claim of malicious prosecution.
In declining to relieve plaintiffs of the added grievance requirement, we thus do no harm to the principle that appellate courts should not “atavistically cling to distinctions which can have no practical significance but to interpose ancient formalities in the path of justice”. Although its English reasons have dissipated here, they have not entirely disappeared and its justifications in American jurisprudence have continuing vitality. No mere ancient formalism, the concept of added grievance ensures that plaintiffs remain relatively free from the threat of retaliatory lawsuits in bringing their good faith claims. Financial burdens resulting from frivolous cases can, in some measure, be assuaged by awarding fees and costs as authorized by rule and statute. In addition, we cannot ignore the strong possibility that, absent the hurdle of an added grievance, successful defendants, seeking additional vindication for the burdens imposed by prior litigation, will claim malicious prosecution, and, if unsuccessful in that claim, their opponents will be all too willing to return the favor.
Dispelling rumors of the special injury requirement’s demise, however, does not resolve the question of what can amount to such an added grievance. In making this determination, we keep in mind that set against the great concerns of providing open access to courts and circumventing ad infinitum litigation is yet another concern, that the courts cannot be made forums for oppression and harassment. In striking the balance between these concerns, we also remain mindful of the role played by the other elements of a malicious prosecution claim. To succeed, the plaintiff must prove malice, or as the Restatement defines it, a purpose other than the adjudication of a claim, and must further prove an entire lack of probable cause in the prior proceeding. This, as we have noted, is no easy feat). These other elements of a malicious prosecution claim thus work to alleviate the fear of retaliation in bringing novel suits as well as to block an endless series of malicious prosecution claims.