Laval Realty, Inc. v. Shell Realty Co. , 151 A.D.2d 321 ( 1989 )

Order, Supreme Court, New York County (Andrew Tyler, J.), entered December 13, 1988, which, inter alia, denied defendant’s motion for summary judgment dismissing the complaint and plaintiffs cross motion to dismiss the counterclaim, unanimously modified, on the law, to grant the cross motion and, except as thus modified, affirmed without costs or disbursements.

In this action for specific performance of a real estate contract, we agree with the motion court that a sufficient showing was made, in admissible form, to present an issue of fact as to whether plaintiff had the financial capacity on the date set for closing to consummate the transaction. Thus, summary judgment was properly denied. The counterclaim for malicious prosecution based on plaintiffs filing of a lis pen-dens should, however, have been dismissed for failure to allege an essential element, i.e., that the underlying action complained of " 'has terminated in favor of the plaintiff in the malicious prosecution action’ ”. (Molinoff v Sassower, 99 AD2d 528, 529.) Defendant has yet to prevail in the underlying action. In interposing its malicious prosecution claim as a counterclaim before a favorable resolution of the action for specific performance, defendant has proceeded prematurely. Accordingly, we modify to dismiss the counterclaim. Concur— Sullivan, J. P., Ross, Asch, Rosenberger and Ellerin, JJ.