DRAGO v. BUONAGURIO


46 N.Y.2d 778 (1978)

Eugene E. Drago, Respondent, v. Madeleine Buonagurio, as Administratrix of The Estate of Francis B. Buonagurio, Deceased, Defendant, and Jerome D. Brownstein, Appellant.

Court of Appeals of the State of New York.

Decided December 20, 1978.


Attorney(s) appearing for the Case

James S. Carter and William P. Soronen, Jr., for appellant.

Harold E. Blodgett for respondent.

J. Richard Burns, James F. Johnson, 4th, and Michael A. Ellenberg for The Medical Society of the State of New York, amicus curiae.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.


MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, and the order of Special Term granting defendant Brownstein's motion to dismiss the complaint as against him for failure to state a cause of action reinstated.

The allegations of the complaint are described in the opinions at Special Term and in the Appellate Division. We agree with those courts, and for the reasons stated by them, that the complaint does not state a cause of action in negligence, abuse of process or malicious prosecution. Nor does it allege a cause of action for what is sometimes labeled a "prima facie tort", i.e., "the intentional malicious injury to another by otherwise lawful means without economic or social justification, but solely to harm the other" (Morrison v National Broadcasting Co., 24 A.D.2d 284, 287, revd on other grounds 19 N.Y.2d 453). Whatever may be the constraints imposed by the Code of Professional Responsibility with the associated sanctions of professional discipline when baseless legal proceedings are instituted by a lawyer on behalf of a client, the courts have not recognized any liability of the lawyer to third parties therefor where the factual situations have not fallen within one of the acknowledged categories of tort or contract liability. That there are proposals before the Legislature to create new liabilities in such a circumstance (e.g., Senate Bill No. 8002 and Assembly Bill No. 10586 [1978], to amend Civil Rights Law, § 70) is an additional reason for judicial restraint in response to invitations to recognize what is conceded to be perhaps a "new, novel or nameless" cause of action. We conclude that the complaint fails to state a cognizable cause of action.

Order reversed, with costs, and the order of Special Term reinstated in a memorandum. Question certified answered in the affirmative.


Comment

1000 Characters Remaining

Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases