This argument, however, downplays cases from the turn of the century which strongly suggest the existence of such a requirement in New York law, and moreover, ignores more recent jurisprudence which cements its existence with sound reasoning and countervailing policy concerns. The Williams footnote cites to Burt v Smith (181 NY 1, 4). Although Burt concerned whether an underlying action to a malicious prosecution case lacked probable cause, it noted that recovery may be limited "unless person or property is interfered with by some incidental remedy, such as arrest, attachment or injunction" ( id.). The reason was that "public policy requires that all persons should freely resort to the courts for redress of wrongs, [and] the law protects them when they act in good faith and upon reasonable grounds" ( id.).

A case prior to Burt suggested another reason. In Ferguson v Arnow, the Court noted that malicious prosecution claims are not encouraged, and thus, without a clear and satisfactory showing that plaintiffs in the previous action lacked reasonable grounds, the case would be dismissed (142 NY 580). To hold otherwise would mean that malicious prosecution cases "could be maintained for the unsuccessful prosecution of many of the actions which come upon appeal to this court, and alarge proportion of unsuccessful actions could be followed by such an action, and litigation be thus interminably prolonged" ( id., at 584–585). Finally, in Willard v Holmes, Booth & Haydens, ( supra), the Court

"assume[d] that there may be satisfactory authority for holding that where a party had been subjected to some special, or added, grievance, as by an interference with his [or her] person or property, in a civil action, brought without probable cause, [that party] may maintain a subsequent action to recover any legal damage" (142 NY, at 495 [citations omitted]).

Our Williams footnote was thus grounded on precedent and the twin policy concerns of open access to the courts and avoiding "interminably prolonged" litigation. It was perhaps for these reasons that the footnote remained, over Chief Judge Fuld's vigorous opposition in the Williams dissent ( Williams v Williams, supra, 23 NY2d, at 609–610 [Fuld, C.J., dissenting]).

Nor have these concerns diminished in the intervening years. This Court, in fact, picked up the threads of our prior cases, weaving a basis for the determination that a claim of prima facie tort could not be used to avoid the "requirements we have set for traditional torts, such as malicious prosecution" ( Curiano v Suozzi, 63 NY2d 113, 118–119). Those requirements, Curiano held, as Burt and Ferguson suggested, were necessary to "effectuate the strong public policy of open access to the courts for all parties" and to avoid "ad infinitum [litigation] with each party claiming that the opponent's previous action wasmalicious and meritless" ( id.). Without extended discussion, then, we were able to require dismissal when special injury had not been pleaded in support of a malicious prosecution claim ( see, Belsky v Lowenthal, 47 NY2d 820, 821; see also, Drago v Buonagurio, 46 NY2d 778, rev'g 61 AD2d 282).

Moreover, the defendant who defeats a frivolous civil claim is not without some possibility of recovering legal expenses. The courts' administrative rules permit many courts, in the exercise of discretion, to award fees and costs and to impose sanctions for frivolous conduct ( see, 22 NYCRR 130–1.1 to 130–1.5; see also, Matter of Ministers, Elders and Deacons of Reformed Protestant Dutch Church v 198 Broadway, Inc., 76 NY2d 411). Furthermore, if "an action to recover damages for personal injury, injury to property or wrongful death *** is found *** to be frivolous by the court, the court shall award to the successful party costs and reasonable attorney's fees not exceeding ten thousand dollars" (CPLR § 8303–a[a]; see also, Fed. Rule of Civil Procedure 11 [providing that the court "shall impose * * * an appropriate sanction," which can include a "reasonable attorney's fee"]; see generally, Wade, supra, 14 Hofstra L. Rev. 433). Such recourse, though in some cases not guaranteed, gives additional viability to the element of special injury as part of a claim of malicious prosecution.

In declining to relieve plaintiffs of the added grievance requirement, we thus do no harm to the principle thatappellate courts should not "atavistically cling * * * to distinctions which can have no practical significance but to interpose ancient formalities in the path of justice" (L. Hand, "Deficiencies of Trials to Reach the Heart of the Matter," 3 Lectures on Legal Topics, Ass'n Bar City of N.Y. 89, 93 [1926]). Although its English reasons have dissipated here, they have not entirely disappeared and its justifications in American jurisprudence have continuing vitality. No mere ancient formalism, the concept of added grievance ensures that plaintiffs remain relatively free from the threat of retaliatory lawsuits in bringing their good faith claims. Financial burdens resulting from frivolous cases can, in some measure, be assuaged by awarding fees and costs as authorized by rule and statute. In addition, we cannot ignore the strong possibility that, absent the hurdle of an added grievance, successful defedants, seeking additional vindication for the burdens imposed by prior litigation, will claim malicious prosecution, and, if unsuccessful in that claim, their opponents will be all too willing to return the favor ( see, Curiano v Suozzi, supra, 63 NY2d, at 119).

III.

Dispelling rumors of the special injury requirement's demise, however, does not resolve the question of what can amount to such an added grievance. In making this determination, wekeep in mind that set against the great concerns of providing open access to courts and circumventing ad infinitum litigation is yet another concern, that the courts cannot be made forums for oppression and harassment ( see, Burt v Smith, supra, 181 NY, at 5).

In striking the balance between these concerns, we also remain mindful of the role played by the other elements of a malicious prosecution claim. To succeed, the plaintiff must prove malice, or as the Restatement defines it, a purpose other than the adjudication of a claim, and must further prove an entire lack of probable cause in the prior proceeding (Restatement [Second] Torts § 674; see Burt v Smith, supra, at 5–6). This, as we have noted, is no easy feat ( Ferguson v Arnow, supra). These other elements of a malicious prosecution claim thus work to alleviate the fear of retaliation in bringing novel suits as well as to block an endless series of malicious prosecution claims.

Moreover, the current formulation of the special injury requirement contains anachronistic features. Gone are the days of the writ of ne exeat (let him not depart), which allowed a civil plaintiff the right to restrict the party sued in equity to the jurisdiction ( see, Civil Rights L. § 23). More notably, arrest as a general provisional remedy in a civil action was abolished in 1979 ( see, L. 1979 c 409, § 1, repealing CPLR §§ 6101–6119; see also, Parson's former NY Code of Civil Procedure §549 [June 1, 1893] [listing the many civil actions giving rights to arrest]). To limit the special injury standard in wrongful civil proceedings to "interference with person" in the sense of an arrest, provides a mold that the law would seldom fill. Empty standards do little to sustain important public policies.