Weichert v. Kimber

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff brought an action in Federal District Court alleging, inter alia, that defendant breached the parties’ implied contract. That court dismissed the complaint for lack of subject matter jurisdiction and assessed costs and attorney’s fees against plaintiff for bringing a frivolous action. Thereafter, plaintiff commenced this action. In his answer, defendant asserted a counterclaim for malicious prosecution arising out of the commencement of the present action and…