Within its answer FVA interposes a counterclaim. FVA, in its counterclaim, alleges that in April 2002, GROWERS filed a complaint against plaintiff for reimbursement of unauthorized adjustments. On February 6, 2002, the USDA issued a decision in GROWERS’s favor. Plaintiff filed an appeal in the SDNY. Subsequently, plaintiff and GROWERS reached a settlement and GROWERS withdrew its complaint. Plaintiff commenced the instant action against FVA despite knowledge that FVA was not a party to the actions between GROWERS and plaintiff, despite knowing that it had no viable cause of action and despite knowledge that the Court of Appeals, Second Circuit issued a decision affirming the USDA’s decision in favor of a seller in a case involving identical facts. Plaintiff, knowing that the allegations against FVA were false, willfully and maliciously prayed upon FVA for the sole purpose of extorting and defrauding FVA. FVA seeks punitive damages in the amount of $500,000 and seeks to recover legal fees incurred in connection with the instant action.
FVA’s motion seeking summary judgment over plaintiff in the instant injury action is hereby granted. Preliminarily, the Court notes that a review of the pleadings in the instant action evinces that plaintiff have failed to state a cause of action for malicious prosecution, abuse of process, and fraud. Similarly, FVA has also failed to state the very same causes of action in its counterclaim. One need only look at the elements of the aforementioned causes of action, which have been adequately detailed above, and it becomes abundantly clear that the allegations within the pleadings fail to assert the same. Hence, were it not for legal obstacles precluding the same, the plaintiff’s complaint and FVA’s counterclaim would fail pursuant to CPLR §3211(a)(7), inasmuch as they fail to state a cause of action.
Contrary to plaintiff’s opposition, while the instant motion is technically, untimely, the Court finds good cause for the delay in making the instant application. Within this Court’s so-ordered stipulation, the time within to make motions for summary judgment was extended through July 17, 2006. Based on the foregoing, this Court concludes that this Court’s denial of FVA’s timely motion establishes the good cause for the delay in making the instant motion. Accordingly, the instant motion shall be decided on the personal injury merits.
With regard to the plaintiff’s cause of action alleging malicious prosecution, it is well settled that in order to prevail on such a claim a plaintiff is obligated to prove each and every one of the elements comprising said cause of action. To the extent that the instant claim for malicious prosecution is premised upon a prior civil proceeding, plaintiff must prove: (1) the commencement or continuation of a prior proceeding by the defendant; (2) the termination of the prior proceeding in favor of the plaintiff; (3) the absence of probable cause for the initiation of the prior proceeding; (4) actual malice; and (5) special damage or injury. To the extent that plaintiff can only prevail if all elements are proven, it logically follows that a defendant need only establish the absence of one element to obtain summary judgment. In the instant action FVA establishes the absence of several elements thereby establishing prima facie entitlement to summary judgment.