Marks v. Marks
| Decision Date | 03 September 1985 |
| Citation | 113 A.D.2d 744,493 N.Y.S.2d 206 |
| Parties | Jay MARKS, Respondent, v. Diane MARKS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Brand & Brand, Garden City (Miriam J. Silver, Garden City, of counsel), for appellant.
Burton & Burton, Hauppauge (Nicholas E. Tishler, Hauppauge, of counsel), for respondent.
Before MOLLEN, P.J., and LAZER, MANGANO and BROWN, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages for abuse of process and prima facie tort, defendant appeals from an order of the Supreme Court, Nassau County, dated January 12, 1984, which denied her motion to dismiss the complaint.
Order reversed, on the law, with costs, motion granted, and complaint dismissed.
Plaintiff commenced this action against defendant, his former wife, charging her with commencing a series of frivolous legal proceedings against him following their divorce in 1980, and alleging that these actions constituted abuse of process and prima facie tort. Defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action. Special Term denied the motion, finding that plaintiff had set forth sufficient factual allegations to establish a cause of action for abuse of process. The court noted that although the complaint did not set forth the necessary allegations regarding special damages, this deficiency in the complaint was cured by plaintiff's affidavit in opposition to the motion. We reverse.
Taking plaintiff's allegations as true, as we must on a motion to dismiss (Sanders v. Winship, 57 N.Y.2d 391, 456 N.Y.S.2d 720, 442 N.E.2d 1231), the complaint fails to state a cause of action for either abuse of process or prima facie tort.
The tort of abuse of process has three essential elements, to wit, regularly issued process either civil or criminal, an intent to do harm without excuse or justification, and use of the process in a perverted manner to obtain a collateral objective (Curiano v. Suozzi, 63 N.Y.2d 113, 480 N.Y.S.2d 466, 469 N.E.2d 1324; Board of Educ. v. Farmingdale Classroom Teachers Assn., 38 N.Y.2d 397, 380 N.Y.S.2d 397, 343 N.E.2d 278; Raved v. Raved, 105 A.D.2d 735, 481 N.Y.S.2d 170). The gravamen of the tort of abuse of process is the improper use of process after it is issued (Williams v. Williams, 23 N.Y.2d 592, 298 N.Y.S.2d 473, 246 N.E.2d 333). In the instant case, plaintiff's complaint alleges no such improper use of process, only that the proceedings were...
To continue reading
Request your trial
-
Mahoney v. Mayowski
... ... perverted manner to obtain a collateral objective (see ... Curiano v Suozzi,, 63 N.Y.2d 113, 480 N.Y.S.2d 466 ... [1984]; Marks v Marks, 113 A.D.2d 744, 493 N.Y.S.2d ... 206 [2d Dept 1985]). However, where the complaint fails to ... allege some irregular activity ... ...
-
Michael R. Gianatasio, PE, P.C. v. City of N.Y.
... ... , it becomes our contract as well as their contract, and then it's subject to our rules, which we then have to go through and fix all these marks, which we endeavored to not have to do by going to [LWS]. See id. at 1819 (emphasis added). 4 In other words, Gipson explained that ACS ... ...
-
Palm v. Tuckahoe Union Free Sch. Dist.
... ... Auto. Ins. Co. v. Anikeyeva, 89 A.D.3d 1009, 1010, 934 N.Y.S.2d 196 [internal quotation marks omitted]; see Rockland Light & Power Co. v. City of New York, 289 N.Y. 45, 51, 43 N.E.2d 803;Matter of Tilcon N.Y., Inc. v. Town of Poughkeepsie, 87 ... ...
-
Muro–Light v. Farley
...N.Y.2d at 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324;Cozzani v. County of Suffolk, 84 A.D.3d 1147, 1147, 923 N.Y.S.2d 348;Marks v. Marks, 113 A.D.2d 744, 745, 493 N.Y.S.2d 206). The complaint fails to state a cause of action alleging prima facie tort, as “retaliatory lawsuits to recover damages......