Zeckendorf v. LUTZ, PC

• Decision Date: 17 April 2001
• Citation: 282 A.D.2d 295,723 N.Y.S.2d 360
• Parties: WILLIAM ZECKENDORF et al., Appellants,<BR>v.<BR>KERRY H. LUTZ, P. C., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

282 A.D.2d 295

723 N.Y.S.2d 360

WILLIAM ZECKENDORF et al., Appellants,

v.KERRY H. LUTZ, P. C., et al., Respondents.

Decided April 17, 2001.

Concur — Sullivan, P. J., Andrias, Ellerin, Rubin and Buckley, JJ.

The causes of action in the amended complaint for trespass, abuse of process and violation of 42 USC § 1983, arising out of the entry of defendants, the attorneys for the judgment creditors, into plaintiff judgment debtor's residence at the Delmonico Hotel pursuant to an ex parte order of the Supreme Court, New York County, to collect on a duly entered judgment, are legally insufficient and were properly dismissed.

Since judicial approval was obtained prior to defendants' entry into plaintiffs' apartment, plaintiffs' claim of trespass must fail unless plaintiffs allege that defendants obtained the ex parte order either by concealing facts from the Justice issuing the order or by falsifying facts in the affidavit submitted in support of the order's issuance (see, Safie v Safie, 19 AD2d 900). Plaintiffs plead no facts or circumstances from which it can be reasonably inferred that defendants' statements to the court were false or fraudulent. Plaintiffs offer only conclusory allegations that defendants knew that plaintiffs leased their residence and were not guests of the hotel and that they knew that plaintiffs' room did not contain a safe.

Plaintiffs' cause of action for abuse of process fails to state a claim for relief since plaintiffs have not set forth facts indicating that defendants utilized the regularly issued...