Hammond v. Equinox Holdings LLC, 2022-30909

• Court: United States State Supreme Court (New York)
• Writing for the Court: PAUL A. GOETZ, J.S.C.
• Parties: STEVEN HAMMOND, Plaintiff, v. EQUINOX HOLDINGS LLC, EQUINOX WALL STREET, INC., MICHAEL ALEXANDER Defendant.
• Decision Date: 22 March 2022
• Docket Number: 2022-30909,Index 155061/2019

STEVEN HAMMOND, Plaintiff,
v.
EQUINOX HOLDINGS LLC, EQUINOX WALL STREET, INC., MICHAEL ALEXANDER Defendant.

No. 2022-30909

Index No. 155061/2019

Supreme Court, New York County

March 22, 2022

Unpublished Opinion

PRESENT: HON. PAUL A. GOETZ Justice

DECISION + ORDER ON MOTION

PAUL A. GOETZ, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 008) 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 232 were read on this motion to/for DISMISSAL.

In this defamation action, plaintiff, a former member of Equinox Gym, moves pursuant to CPLR 3211 to dismiss defendant Michael Alexander's counterclaim for abuse of process. Defendant Alexander cross-moves pursuant to CPLR 3211(a)(7) to dismiss the complaint.

With regard to plaintiffs motion to dismiss the counterclaim, "[a]buse 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 [1984]). Further, "the gist of the action for abuse of process lies in the improper use of process after it is issued" (Williams v. Williams, 23 N.Y.2d 592, 569 [1969]). Here, defendant does not allege that, after plaintiff filed this lawsuit, plaintiff used the lawsuit "to gain an advantage collateral to its legitimate ends" (Bonarco, Ltd. v. Cossington Overseas, 269 A.D.2d 158, 158-59 [1st Dep't 2000] [holding that Russian court's restraining order on plaintiffs sale of stock was insufficient to support abuse of process claim]; I.G. Second Generation, 17 A.D. at 207-08 [stating that there was no indication

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that "process" was perversely utilized by defendants where defendants in prior action sought declaration that they were entitled to possession of the subject premises which relief was entirely appropriate and not collateral to defendants' objective of securing an exclusive right to the premises]). Moreover, the allegation that plaintiff was motivated by malice and hatred in bringing the action is insufficient to give rise to a cause of action for abuse of process (I.G. Second Generation, 17 A.D.3d at 207). Accordingly, the counterclaim will be dismissed. However, the request for sanctions is denied as the counterclaim was not patently frivolous.

Turning to the cross-motion, plaintiff argues that the motion cannot be considered because it is untimely. However, under CPLR 3211(e), a motion under CPLR 3211(a)(7) can be made at any...