Miller v. Ruff (240 A.D.2d 297, 1997)

Order, Supreme Court, New York County (Louis York, J.), entered on or about September 23, 1996, which denied defendants-appellants’ motion for summary judgment dismissing the fourth through twelfth causes of action as against all defendants and the first through third causes of action as against defendant Hawley Fuel Coal, Inc., unanimously modified, on the law, to grant the motion with respect to the tenth through twelfth causes of action, and otherwise affirmed, without costs.

The IAS Court properly determined that issues of fact exist at this stage of the proceedings with respect, to the abuse of process, false arrest / imprisonment and breach of contract causes of action, precluding an award of summary judgment. However, the malicious prosecution causes of action should have been dismissed since plaintiffs failed to establish that the underlying criminal action terminated in their favor (MacFawn v Kresler, 88 NY2d 859; Pacholka v Kozic, 236 AD2d 265). Concur—Sullivan, J. P., Rosenberger, Ellerin, Williams and Colabella, JJ.