Drago v. Buonagurio

• Decision Date: 21 January 1977
• Citation: 89 Misc.2d 171,391 N.Y.S.2d 61
• Parties: Eugene E. DRAGO, M.D., Plaintiff, v. Madeline BUONAGURIO, Individually and as Administratrix of Estate of FrancisBuonagurio, et al., Defendants.
• Court: New York Supreme Court

Page 61

391 N.Y.S.2d 61

89 Misc.2d 171

Eugene E. DRAGO, M.D., Plaintiff, v. Madeline BUONAGURIO, Individually and as Administratrix of

Estate of FrancisBuonagurio, et al., Defendants.

Supreme Court, Special Term, Schenectady County.

Jan. 21, 1977.

Armand R. Riccio, Schenectady, for plaintiff.

Carter, Conboy, Bardwell, Case & Blackmore, Albany, for defendant Jerome D. Brownstein (Randall J. Ezick, Albany, of counsel).

HAROLD J. HUGHES, Justice.

Defendant Jerome Brownstein has moved for dismissal of the complaint as to him on the ground that it fails to state a cause of action.

The complaint sets forth the following facts which, for the purposes of this motion, are deemed to be true. In December, 1974, plaintiff, a physician, was served with a summons and a complaint containing allegations that he and others committed malpractice which caused the death of Francis Buonagurio. The action against plaintiff was instituted at the direction of defendant Brownstein, an attorney retained by defendant Madeline Buonagurio. Plaintiff did not treat Mr. Buonagurio during the illness which led to his demise, and no basis existed for naming plaintiff as a party defendant in the wrongful death action. The complaint asserts that plaintiff was subjected to a frivolous lawsuit as the result of a malicious disregard of his rights and that defendant Brownstein was negligent in (among other things) failing to investigate the facts and circumstances surrounding the claim against plaintiff; employing the action against plaintiff as a discovery device; and conducting the practice of law in a malicious and unethical fashion with a reckless disregard for the truth of falsity of the allegations set forth in the complaint against plaintiff. In this action, plaintiff seeks general damages in the sum of $200,000.

The issue, apparently one of first impression in New York, is whether an attorney who institutes a frivolous malpractice action at the behest of a client, is liable in damages to the physician so sued.

The court first finds that the complaint does not state a cause of action for abuse of process. The gist of the action for abuse of process lies in the improper use of process after it is issued, and not for its issuance (Williams v. Williams, 23 N.Y.2d 592, 596, 298 N.Y.S.2d 473, 476, 246 N.E.2d 333, 335; Frank v. Coe, 51 A.D.2d 992, 381 N.Y.S.2d 102). Moreover, for this action to lie, there must be a regularly issued process, civil or criminal, compelling the performance or forebearance of some prescribed act (Board of Educ. of Farmingdale Union Free School Dist. v. Famingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 N.Y.2d 397, 403, 380 N.Y.S.2d 635, 642, 343 N.E.2d 278, 283). The process issued against plaintiff, a summons and complaint in a malpractice action, does not satisfy that requirement. 'It has repeatedly been held that the mere institution of a civil action which has occasioned a party trouble, inconvenience, and expense of defending, will not support an action for abuse of process. Public policy requires that parties be permitted to avail themselves of the courts to settle their grievances and that they may do so without unnecessary exposure to a suit for damages in the event of an unsuccessful prosecution.' (1 N.Y.Jur., ...