Judgment affirmed, with $50 costs and disbursements.
Edward Napiura died at Beekman-Downtown Hospital at approximately 12:30 P.M. on September 2, 1970. He had been brought into Beekman about 10 hours earlier after an apparent fall down a flight of steps. The cause of death was cardio-respiratory failure, triggered by a cerebral edema. Napiura's next of kin commenced a wrongful death action against Beekman and two physicians, the plaintiff and a Dr. James. The complaint therein charged the defendants with medical malpractice in failing to make a timely and proper diagnosis of decedent's condition and to exercise reasonable care and skill in treatment. The case was eventually settled by stipulation, after just one day of trial, by discontinuance as to all defendants for the sum of $75,000, to be paid entirely by Beekman. Thereafter, the plaintiff commenced this action against Napiura's next of kin and their attorneys, the respondents herein. Essentially, the amended complaint charges that the plaintiff had been wrongfully joined as a party defendant in the malpractice action with the deliberate intent of forcing a settlement from his insurer and/or codefendant Beekman, and of using him as an expert witness, without remuneration, against his codefendants. Upon the respondents' motion, Special Term dismissed the first through fourth causes of action, sounding in abuse of process, malicious prosecution and prima facie tort, and seeking punitive damages. We affirm. "A malicious prosecution is one that is begun in malice, without probable cause to believe it can succeed, and which finally ends in failure" (Burt v Smith, 181 N.Y. 1, 5). The cause of action for malicious prosecution is fatally defective in that it fails to allege interference with plaintiff's person or property by the use of some incidental remedy, which is a necessary element where the prior proceeding was purely civil in nature (see Williams v Williams, 23 N.Y.2d 592, 596, n 2; Burt v Smith, supra; Drago v Buonagurio, 61 A.D.2d 282; Chappelle v Gross, 26 A.D.2d 340; Metromedia, Inc. v Mandel, 21 A.D.2d 219, affd 15 N.Y.2d 616); as to the cause of action for malicious prosecution, the record fails to establish that the termination of the prior malpractice action was in plaintiff's favor (see, e.g., Pagliarulo v Pagliarulo, 30 A.D.2d 840). As respects the latter failure, we note that, although the plaintiff's attorney did not orally "so stipulate", the stipulation of settlement and discontinuance was entered into by the attorneys "for the respective parties" and read into the record in the presence of the plaintiff's attorney. It must also be noted with respect to the allegations of probable cause and actual malice, that the plaintiff had concededly been involved in decedent's treatment, at least to the extent of advising the performance of an emergency angiogram. A cause of action for