
    Roslynd Hornstein, Appellant, v Edward H. Wolf et al., Respondents.
   In an action to recover compensatory and punitive damages for alleged malicious prosecution, plaintiff appeals from an order of the Supreme Court, Nassau County, entered July 13, 1979 which, upon defendants’ motion, dismissed the complaint without prejudice, on the grounds that it failed to state a cause of action and was premature. Order affirmed, with $50 costs and disbursements. Among the elements essential to the maintenance of a cause of action for malicious prosecution is a termination of the allegedly malicious proceeding which is favorable to the person who wishes to maintain the malicious prosecution action (see Ellman v McCarty, 70 AD2d 150, 155). The proceeding upon which the instant plaintiff’s first cause of action was based was dismissed due only to the fact that the plaintiff therein had been dead for a number of years. In dismissing that proceeding the court granted leave to bring a proper action. Such a termination cannot be considered one favorable to the instant plaintiff. The proceeding underlying plaintiff’s second and third causes of action remains pending. Until that action is terminated favorably to her, she cannot maintain an action for malicious prosecution (see Psaty v Fifth Ave. & 93rd St. Corp., 132 Misc 278, affd 226 App Div 733; Superior Tool & Die Co. v Bailey, 17 Misc 2d 614; McClellan Agency v Cunningham, Nielsen & Molloy, 22 Misc 2d 372; see, also, 2 NY PJI, 812). Damiani, J. P., Gulotta, Martuscello and O’Connor, JJ., concur.  