Weisman v. Weisman
| Decision Date | 19 February 1985 |
| Citation | 108 A.D.2d 853,485 N.Y.S.2d 570 |
| Parties | Martin WEISMAN, Appellant, v. Rena WEISMAN, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Robert A. Ugelow, Brooklyn, for appellant.
Michael A. Brobenare, Brooklyn, for respondent.
Before WEINSTEIN, J.P., and BROWN, NIEHOFF and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages for malicious prosecution, plaintiff appeals from so much of an order of the Supreme Court, Kings County, dated August 16, 1983, as denied those branches of his motion which sought dismissal of the first and third counterclaims asserted in defendant's answer.
Order modified, on the law, by granting that branch of plaintiff's motion which sought dismissal of the first counterclaim, and granting that branch of the motion as sought dismissal of the third counterclaim to the extent that all allegations contained therein which arose prior to November 12, 1981 are stricken. As so modified, order affirmed insofar as appealed from, without costs or disbursements.
It was error for Special Term not to have dismissed defendant's first counterclaim. Mere commencement of a civil action by service of a summons and complaint is insufficient to support a claim for abuse of process (Curiano v. Suozzi, 63 N.Y.2d 113, 480 N.Y.S.2d 466, 469 N.E.2d 1324; James v. Saltsman, 99 A.D.2d 797, 472 N.Y.S.2d 129; Hansen v. Rothschild, 83 A.D.2d 548, 441 N.Y.S.2d 27; Krellman v. Livingston, 64 A.D.2d 621, 406 N.Y.S.2d 881, app. dsmd. 45 N.Y.2d 960, 411 N.Y.S.2d 565, 383 N.E.2d 1158).
As to defendant's third counterclaim for intentional infliction of emotional distress, a cause of action was properly pleaded in that the conduct alleged exceeded " 'all bounds usually tolerated by decent society' " Fisher v. Maloney, 43 N.Y.2d 553, 557, 402 N.Y.S.2d 991, 373 N.E.2d 1215, quoting from Prosser, Torts § 12, p. 56; Gurkin v. Siegel, 122 Misc.2d 302, 470 N.Y.S.2d 540). Some alleged incidents occurred more than one year before November 12, 1982, the undisputed date when plaintiff served his summons upon the clerk of the court. Therefore, the Statute of Limitations had expired when the action was commenced with respect to those incidents (see CPLR 203, subd. par. 5; CPLR 215, subd. 3). Since the other alleged occurrences (involving an act of destruction to the windows of the house where defendant and her children were staying, leaving them without protection from the severe cold, and threats to defe...
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