Stroock & Stroock & Lavan v. Beltramini

• Decision Date: 25 January 1990
• Citation: 550 N.Y.S.2d 337,157 A.D.2d 590
• Parties: STROOCK & STROOCK & LAVAN, Plaintiff-Appellant, v. Linda M. BELTRAMINI, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 337

550 N.Y.S.2d 337

157 A.D.2d 590

STROOCK & STROOCK & LAVAN, Plaintiff-Appellant, v. Linda M. BELTRAMINI, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Jan. 25, 1990.

J.R. Fialkoff, New York City, for plaintiff-appellant.

T.A. Andrews, for defendant-respondent.

Before ELLERIN, J.P., and WALLACH, SMITH and RUBIN, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Harold Tompkins, J.), entered May 19, 1989, which granted defendant's motion to serve an amended answer (CPLR 3025(b)), unanimously reversed, on the law, the facts, and in the exercise of discretion, and the motion denied, without costs.

In this action to recover legal fees, defendant sought leave to interpose a defense asserting lack of personal jurisdiction and counterclaims for legal malpractice and abuse of process. While, as Supreme Court recognized, leave to amend a pleading is freely granted as a matter of discretion in the absence of prejudice or surprise (Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 444 N.Y.S.2d 571, 429 N.E.2d 90; Fahey v. County of Ontario, 44 N.Y.2d 934, 408 N.Y.S.2d 314, 380 N.E.2d 146) leave may not be granted where the amended pleading plainly fails to state a cause of action and, thus, lacks merit (Thomas Crimmins Contracting Co. v. City of New York, 74 N.Y.2d 166, 544 N.Y.S.2d 580, 542 N.E.2d 1097; Daniels v Empire-Orr, Inc., 151 A.D.2d 370, 542 N.Y.S.2d 614).

The jurisdictional defense was previously resolved against defendant in an order entered January 11, 1989, from which no appeal was taken. Therefore, the prior ruling is law of the case and may not be relitigated (Spertell v. Hendrix, 93 A.D.2d 788, 461 N.Y.S.2d 823).

Defendant's counterclaim for abuse of process is founded entirely upon plaintiff's service of a summons and complaint, asserted to comprise a "baseless" action for legal fees and claimed to have caused defendant the expense of defending the action. As a matter of law, service of a summons and complaint, even if made with malicious intent, is insufficient to state a cause of action for abuse of process (Curiano v. Suozzi, 102 A.D.2d 759, 477 N.Y.S.2d 13, affd. 63 N.Y.2d 113, 480 N.Y.S.2d 466, 469 N.E.2d 1324; Family Media v. Printronic Corp. of Am., 140 A.D.2d 151, 527 N.Y.S.2d 786). Nor does the allegation that suit was instituted to coerce a settlement constitute a sufficient basis for maintenance of the action (Perry v. Manocherian, 675 F.Supp. 1417 [S.D.N.Y.1987]. Finally, abuse of process requires "the deliberate premeditated infliction of economic injury without...