Tenore v. Kantrowitz, Goldhamer & Graifman, P.C.

• Decision Date: 10 August 2010
• Citation: 76 A.D.3d 556,907 N.Y.S.2d 255
• Parties: Thomas TENORE, appellant, v. KANTROWITZ, GOLDHAMER & GRAIFMAN, P.C., respondent.
• Court: New York Supreme Court — Appellate Division

907 N.Y.S.2d 255 76 A.D.3d 556 Thomas TENORE, appellant, v. KANTROWITZ, GOLDHAMER & GRAIFMAN, P.C., respondent. Supreme Court, Appellate Division, Second Department, New York. Aug. 10, 2010.

Thomas Tenore, Airmont, N.Y., appellant pro se.

Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (Michael L. Braunstein of counsel), respondent pro se.

MARK C. DILLON, J.P., HOWARD MILLER, RANDALL T. ENG, and CHERYL E. CHAMBERS, JJ.

In an action to recover damages for violation of Judiciary Law § 487, fraud, and abuse of process, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Kelly, J.), dated March 11, 2009, as denied those branches of his motion pursuant to CPLR 3211(a)(7) and 3211(b) which were to dismiss the defendant's counterclaim and second, fourth, fifth, and sixth affirmative defenses, and (2) an order of the same court dated May 4, 2009, which denied his motion for leave to reargue and, inter alia, to dismiss the answer pursuant to CPLR 3216 or compel further disclosure pursuant to CPLR 3124.

ORDERED that the order dated March 11, 2009, is reversed insofar as appealed from, on the law, and those branches of the plaintiff's motion pursuant to CPLR 3211(a)(7) and 3211(b) which were to dismiss the defendant's counterclaim and second, fourth, fifth, and sixth affirmative defenses are granted; and it is further,

ORDERED that the appeal from so much of the order dated May4, 2009, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated May 4, 2009, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff contends that the Supreme Court erred in denying that branch of his motion pursuant to CPLR 3211(a)(7) which was to dismiss the defendant's counterclaim to recover damages for abuse of process upon the ground that it fails to state a cause of action. We agree.The three essential elements of the tort of abuse of process are "(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). However, the mere commencement of a civil action by summons and complaint does not constitute abuse of process ( see Curiano v. Suozzi, 63 N.Y.2d at 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324; Schwartz v. Sayah, 72 A.D.3d 790, 899 N.Y.S.2d 316; Greco v. Christoffersen, 70 A.D.3d 769, 770, 896 N.Y.S.2d 363), and the gist of the tort is "the improper use of process after it is issued" by "an unlawful interference with one's person or property" ( Williams v. Williams, 23 N.Y.2d 592, 596, 298 N.Y.S.2d 473, 246 N.E.2d 333 [internal quotation marks omitted] ). Here, although the defendant law firm alleges that the plaintiff commenced this action with the collateral objective of inflicting economic harm and obtaining a tactical advantage in a pending divorce action, a malicious motive alone does not give rise to a cause of action to recover damages for abuse of process ( see Curiano v. Suozzi, 63 N.Y.2d at 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324; Matthews v. New York City Dept. of Social Servs. Child Welfare Admin., 217 A.D.2d 413, 415, 629 N.Y.S.2d 241; Butler v. Ratner, 210 A.D.2d 691, 693, 619 N.Y.S.2d 871), and the defendant did not allege that the plaintiff interfered with the defendant's property rights after the issuance of process by resorting to a provisional remedy ( see Williams v. Williams, 23 N.Y.2d at 596, n. 1, 298 N.Y.S.2d 473, 246 N.E.2d 333; Greco v. Christoffersen, 70 A.D.3d at 770, 896 N.Y.S.2d 363; Island Fed. Credit Union v. Smith, ...