Greco v. Christoffersen

Decision Date09 February 2010
Citation896 N.Y.S.2d 363,70 A.D.3d 769,2010 N.Y. Slip Op. 00924
PartiesAnthony GRECO, appellant,v.Alan CHRISTOFFERSEN, et al., respondents.
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

Tsyngauz & Associates, P.C., New York, N.Y. (Yevgeny Tsyngauz of counsel), for appellant.

Robert Prignoli, Staten Island, N.Y., respondent pro se and for respondent Sienna Abstract, LLC.REINALDO E. RIVERA, J.P., MARK C. DILLON, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.

In an action to recover damages for fraud and aiding and abetting fraud, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Fusco, J.), dated December 10, 2008, as granted the motion of the defendant Robert Prignoli for leave to amend his answer to assert counterclaims to recover damages for abuse of process and malicious prosecution and to impose a sanction upon the plaintiff pursuant to 22 NYCRR 130–1.1, and denied those branches of his cross motion pursuant to CPLR 3211(b) which were to dismiss the first, sixth, ninth, and eleventh affirmative defenses of all three defendants, the eighth and twelfth affirmative defenses of the defendant Alan Christoffersen, and the fifth and twelfth affirmative defenses of the defendant Robert Prignoli.

ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof granting the motion of the defendant Robert Prignoli for leave to amend his answer to assert counterclaims to recover damages for abuse of process and malicious prosecution and to impose a sanction upon the plaintiff pursuant to 22 NYCRR 130–1.1, and substituting therefor a provision denying the motion, and (2) by deleting the provision thereof denying those branches of the plaintiff's cross motion which were pursuant to CPLR 3211(b) to dismiss the eleventh affirmative defenses of all three defendants, the eighth and twelfth affirmative defenses of the defendant Alan Christoffersen, and the twelfth affirmative defense of the defendant Robert Prignoli, and substituting therefor a provision granting those branches of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.

The Supreme Court improvidently exercised its discretion in granting the motion of the defendant Robert Prignoli for leave to amend his answer to assert counterclaims to recover damages for abuse of process and malicious prosecution and to impose a sanction upon the plaintiff pursuant to 22 NYCRR 130–1.1. “Leave to amend pleadings should be freely given provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit” ( Gitlin v. Chirinkin, 60 A.D.3d 901, 901–902, 875 N.Y.S.2d 585; see CPLR 3025[b]; Sheila Props., Inc. v. A Real Good Plumber, Inc., 59 A.D.3d 424, 426, 874 N.Y.S.2d 145; Boakye–Yiadom v. Roosevelt Union Free School Dist., 57 A.D.3d 929, 931, 871 N.Y.S.2d 314). “A determination whether to grant such leave is within the Supreme Court's broad discretion, and the exercise of that discretion will not be lightly disturbed” ( Gitlin v. Chirinkin, 60 A.D.3d at 902, 875 N.Y.S.2d 585; see Ingrami v. Rovner, 45 A.D.3d 806, 808, 847 N.Y.S.2d 132).

“Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective” ( Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324). Here, there is no evidence that the plaintiff commenced the instant action with an intent to do harm without excuse or justification. Moreover, the mere commencement of a lawsuit cannot serve as the basis for a cause of action alleging abuse of process ( id. at 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324). The commencement of the instant action does not give rise to a counterclaim alleging malicious prosecution, since there was no interference with Prignoli's person or property because of resort to a provisional remedy, such as arrest, attachment, injunction, receivership, or notice of pendency ( see Clark v. MacKay, 97 A.D.2d 394, 467 N.Y.S.2d 217; Ellman v. McCarty, 70 A.D.2d 150, 420 N.Y.S.2d 237; cf. Chu v. Greenpoint Bank, 257 A.D.2d 589, 684 N.Y.S.2d 268).

Furthermore, with respect to Prignoli's third proposed counterclaim, New York does not recognize a separate cause of action to impose sanctions ( see Ocean Side Institutional Indus., Inc. v. Superior Laundry, 15 Misc.3d 1123[A], 2007 WL 1175494; Aurora Loan Servs., LLC v. Cambridge Home Capital, LLC, 12 Misc.3d 1152[A], 2006 WL 1320741 ). Thus, that branch...

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