On May 21, 2026, the First Department issued a decision in Motcomb Estates, Ltd. v. CMB Export Infrastructure Inv. Group 48, LP, 2026 NY Slip Op. 03234, holding that the denial of a motion to dismiss defeated a malicious prosecution claim, explaining:
The complaint, which asserted a single cause of action, for malicious prosecution, was properly dismissed for failure to sufficiently allege the absence of probable cause to initiate or continue the underlying action.
A presumption of probable cause was created by the motion court’s orders in the prior action granting plaintiff’s motion for a preliminary injunction, denying defendants’ motion to dismiss, and denying defendants’ motions to renew. Plaintiffs’ allegations were insufficient to overcome this presumption. Notably, in the motion to renew,the motion court considered the effect of the Term Sheet on which plaintiffs now rely as evidence that defendants knew their claim in the prior action was without merit.
Neither the Term Sheet nor any of the alleged fraudulent misrepresentations that plaintiffs assert were contradicted by the Term Sheet persuaded the motion court that defendants did not have a colorable claim that plaintiffs concealed from defendants the transfer restrictions included in the Participation Agreement, and their negative effect on defendants. The reversal of the motion court’s orders by this Court is not dispositive of whether defendants had probable cause to commence the underlying action in the first instance.
(Internal citations omitted).