Yohay v. Martin, Van De Walle, Guarino & Donohue
| Decision Date | 26 December 1989 |
| Parties | Steven YOHAY, et al., Respondents, v. MARTIN, VAN DE WALLE, GUARINO & DONOHUE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
John F. Mulholland, Hicksville, for appellant.
Eric H. Holtzman, Hauppauge (Barney T. Levantino, of counsel), for respondents.
Before BRACKEN, J.P., and BROWN, KUNZEMAN and KOOPER, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover a penalty due to the defendant's failure to execute and file a satisfaction-piece, the defendant appeals from an order of the Supreme Court, Nassau County (Murphy, J.), dated September 27, 1988, which denied its motion for summary judgment.
ORDERED that the order is modified, on the law, (1) by deleting therefrom the provision which denied those branches of the defendant's motion which were to dismiss the causes of action sounding in prima facie tort and abuse of process and for a mandatory injunction compelling the defendant to execute and file a satisfaction-piece, and substituting therefor a provision granting those branches of the motion, and, (2), upon searching the record, by adding thereto a provision granting the plaintiffs judgment against the defendant in the principal sum of $100; as so modified, the order is affirmed, without costs or disbursements.
The plaintiffs' complaint does not disclose a cause of action in prima facie tort since they failed to allege that the defendant's sole motivation was "disinterested malevolence" (see, Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 333, 464 N.Y.S.2d 712, 451 N.E.2d 459; Siegel v. Smith, Panish & Shapiro, 136 A.D.2d 620, 523 N.Y.S.2d 866). Neither are there sufficient facts alleged which would lead to an inference that (1) there was regularly issued legal process compelling performance or forbearance of some act, (2) the person activating the process was moved by an ulterior purpose to cause harm, without economic or social excuse or justification, (3) the person activating the process sought some collateral advantage or corresponding detriment to the present plaintiff which is outside the legitimate ends of the process, and (4) there were actual or special damages, which would support a cause of action alleging the tort of abuse of process (see, Board of Educ. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Assn. Local 1889, AFT AFL-CIO, 38 N.Y.2d 397, 403, 380 N.Y.S.2d 635, 343 N.E.2d 278; Williams v....
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Gratton v. Vadney
...(3d Dept 2008) ; Silberman v. Flaum, 225 A.D.2d 985, 639 N.Y.S.2d 532 (3d Dept 1996) ; Yohay v. Martin, Van De Walle, Guarino & Donohue, 156 A.D.2d 675, 549 N.Y.S.2d 158 (2d Dept 1989) ; Brown v. Bethlehem Terrace Associates, 136 A.D.2d 222, 525 N.Y.S.2d 978 (3d Dept 1988) ; Weisman v. Weis......
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Edmond v. Longwood Cent. Sch. Dist.
...harm" and to obtain "some collateral advantage ... outside the legitimate ends of the process." Yohay v. Martin, Van De Walle, Guarino & Donohue, 549 N.Y.S.2d 158, 159 (2d Dep't 1989), lv. app.denied, 75 N.Y.2d 710 (1990); see also Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994) (overview of......
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Buccieri v. Franzreb
...excuse or justification, two of the four elements of a cause of action for abuse of process (see, Yohay v. Martin, Van De Walle, Guarino & Donohue, 156 A.D.2d 675, 549 N.Y.S.2d 158, lv. denied 75 N.Y.2d 710, 556 N.Y.S.2d 247, 555 N.E.2d 619). The complaint alleges no facts demonstrating tha......
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