Ames v. Knobler , 19 A.D.2d 705 ( 1963 )

Appeals from orders of the Supreme Court at Special Term, entered respectively on April 24, 1962 and June 25, 1962 in Bronx County, which (1) granted a motion by defendant for an order for leave to serve an amended answer containing a counterclaim, and (2) denied a motion by plaintiff for an order dismissing the counterclaim, (a) as legally insufficient, and (b) on the ground that the counterclaim is barred by the Statute of Limitations.

Memorandum by the Court: Order entered on April 24, 1962 granting leave to serve an amended answer and counterclaim, affirmed, with $10 costs and disbursements to respondent. One of the questions which necessarily must be determined in connection with the cause of action for malicious prosecution is whether defendant had “ probable cause ” to have issued the criminal information against the plaintiff. A determination as to the existence of such “probable cause ” will depend in large measure on the nature of plaintiff’s use of the premises at the time in question. Such factual determination of the nature of the plaintiff’s use will also be a factor in determining the issues raised by the counterclaim. The presence of the counterclaim will in no way interfere with an orderly resolution of plaintiff’s complaint. To the contrary, it would be inappropriate and a burden on the judicial process to require two trials in this matter. Indeed, if the matter contained in the counterclaim were the subject of a separate suit, a motion for consolidation could very well be granted. Nor do we find the delay involved to be such as, under all the circumstances, mandates that the amended answer be rejected. Nor is there any demonstration of prejudice to the plaintiff as to warrant such a result. Order entered on June 25, 1962 denying plaintiff’s motion to dismiss the counterclaim for insufficiency and as being barred by the Statute of Limitations, affirmed, with $10 costs and disbursements to the respondent.' The counterclaim alleges, inter alla, interference with the defendant’s right to quietly enjoy his adjoining residence. Assuming, as we must, thé allegations of the complaint to be true, such allegations would suffice to entitle plaintiff to recover. Nor is the cause of action barred by the three year limitation applicable to negligence actions. The nature of the conduct complained of which allegedly interfered with defendant’s enjoyment of his property is such as to at least permit a finding of nuisance (see McCarty v. National Carbonic Gas Co., 189 N. Y. 40; Dillon v. Cortland Baking Co., 224 App. Div. 303; Prosser, Torts [2d ed.], § 72). We cannot now say that as a matter of law the counterclaim is based upon negligent conduct rather than nuisance.