abuse of process claim in New York

2024The elements of an Abuse of Process claim 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 (1984).

2023Defendant's assertions on appeal that plaintiff continued this litigation for the wrongful purpose of coercing him to drop his earlier-filed lawsuit are conclusory, and the counterclaim, as pleaded, alleges that plaintiff commenced this action with a malicious motive, which is insufficient to sustain an abuse of process claim ( see Curiano v Suozzi , 63 NY2d 113, 117 [1984]; Hauser v Bartow , 273 NY 370, 373 [1937]).

2022"Abuse of process has three essential elements: (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 NY2d 113, 116 [1984]; see Liss v Forte , 96 AD3d 1592, 1593 [4th Dept 2012]).

2014In general, such a claim “will only lie for improperly using process after it is issued” (Minasian v Lubow, 49 AD3d at 1036 ; see Curiano v Suozzi, 63 NY2d at 117 ; Liss v Forte, 96 AD3d 1592, 1593 [2012]; but see Parkin v Cornell Univ., 78 NY2d 523, 530 [1991]), and a malicious motive alone is insufficient to give rise to a cause of action to recover for abuse of process (see Curiano v Suozzi, 63 NY2d at 117 ; Matthews v New York City Dept. of Social Servs., Child Welfare Admin., 217 AD2d 413, 415 [1995], lv denied 87 NY2d 812 [1996]; Butler v Ratner, 210 AD2d 691, 693 [1994], lv dismissed 85

2000Under the instant circumstances, defendants-respondents’ service of their summons and complaint, and the issuance, via proper judicial process, of the Russian court’s restraining order on plaintiff’s sale of stock purchased by it from a third party who stole it from defendants, are insufficient to support an abuse of process claim (Curiano v Suozzi, 63 NY2d 113 ; Park v State of New York, 226 AD2d 153 ; Matthews v New York City Dept. of Social Servs., 217 AD2d 413 , lv denied 87 NY2d 812 ).

1996The fifth cause of action was also properly dismissed since the mere commencement of the underlying civil action, and the issuance, via proper judicial process, of provisional orders of attachment enjoining claimants from transferring or secreting assets, are insufficient to form the basis for an abuse of process claim (Curiano v Suozzi, 63 NY2d 113, 116 ; Matthews v New York City Dept. of Social Servs., 217 AD2d 413, 415 ).

2014In general, such a claim “will only lie for improperly using process after it is issued” (Minasian v Lubow, 49 AD3d at 1036 ; see Curiano v Suozzi, 63 NY2d at 117 ; Liss v Forte, 96 AD3d 1592, 1593 [2012]; but see Parkin v Cornell Univ., 78 NY2d 523, 530 [1991]), and a malicious motive alone is insufficient to give rise to a cause of action to recover for abuse of process (see Curiano v Suozzi, 63 NY2d at 117 ; Matthews v New York City Dept. of Social Servs., Child Welfare Admin., 217 AD2d 413, 415 [1995], lv denied 87 NY2d 812 [1996]; Butler v Ratner, 210 AD2d 691, 693 [1994], lv dismissed 85

2000The 911 call does not give rise to an abuse of process claim because, although the Sheriff investigated the complaint, no process was issued nor was a proceeding initiated (see, Curiano v Suozzi, 63 NY2d 113, 116-117 ; Butler v Ratner, 210 AD2d 691, 693 , lv dismissed 85 NY2d 924 ).

2014With respect to the abuse of process claim, the three essential elements 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 NY2d 113, 116 [1984]; accord Kosmider v Garcia, 111 AD3d 1134, 1137 [2013]; Minasian v Lubow, 49 AD3d 1033, 1035-1036 [2008]).

2014With respect to the abuse of process claim, the three essential elements 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 NY2d 113, 116 [1984]; accord Kosmider v Garcia, 111 AD3d 1134, 1137 [2013]; Minasian v Lubow, 49 AD3d 1033, 1035-1036 [2008]).

2014With respect to the abuse of process claim, the three essential elements 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 NY2d 113, 116 [1984]; accord Kosmider v Garcia, 111 AD3d 1134, 1137 [2013]; Minasian v Lubow, 49 AD3d 1033, 1035-1036 [2008]).

2014With respect to the abuse of process claim, the three essential elements 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 NY2d 113, 116 [1984]; accord Kosmider v Garcia, 111 AD3d 1134, 1137 [2013]; Minasian v Lubow, 49 AD3d 1033, 1035-1036 [2008]).

1998Plaintiffs factual allegation that defendant Ward knowingly commenced a meritless illegal lockout action, for example, is insufficient because the mere “institution of a civil action * * * is not legally considered process capable of being abused” (Curiano v Suozzi, supra, 63 NY2d, at 116 ), and plaintiff is unable to set forth any other facts sufficient to establish how this process was diverted from its lawful purpose after it was issued — which is the “ ‘gist of the action for abuse of process’ (Williams v Williams, 23 NY2d 592, 596 [1969].) Indeed, plaintiff’s own affidavit indicates that

1992(Sokol v Sofokles, 136 AD2d 535, 536 [1988].) The abuse of process claim fails because, inter alia, plaintiff was not subjected to the wrongful use of a provisional remedy (Sokol v Sofokles, supra; Williams v Williams, 23 NY2d 592, 596 [1969]) and there is no evidence of an intent, without economic or social excuse or justification, to harm plaintiff by issuance of a regularly issued process which compels performance or forbearance.

2000Under the instant circumstances, defendants-respondents’ service of their summons and complaint, and the issuance, via proper judicial process, of the Russian court’s restraining order on plaintiff’s sale of stock purchased by it from a third party who stole it from defendants, are insufficient to support an abuse of process claim (Curiano v Suozzi, 63 NY2d 113 ; Park v State of New York, 226 AD2d 153 ; Matthews v New York City Dept. of Social Servs., 217 AD2d 413 , lv denied 87 NY2d 812 ).

1996Moreover, we find that defendants’ counterclaim for malicious prosecution should have been dismissed and that no claim lies here for abuse of process (see, Park v State of New York, 226 AD2d 153, 154 ["mere commencement of the underlying civil action, and the issuance, via proper judicial process, of provisional orders of attachment enjoining claimants from transferring or secreting assets, are insufficient to form the basis for an abuse of process claim”]).

2026Meanwhile, regarding plaintiff's procurement of a TRO, the only monetary injuries identified by defendants were attorneys' fees and a "windfall payout," which defendants described as "a large settlement payout." However, neither category of damages constitutes the kind of harm necessary to sustain an abuse of process claim ( see Stroock & Stroock & Lavan v Beltramini , 157 AD2d 590, 591 [1st Dept 1990]; see also Bio-Technology.

2026Plaintiff's statements were unquestionably related to the subject matter of that agreement, which addressed plaintiff's purported inability to conduct work at the leased premises and plaintiff's losses should it be excluded from the premises ( see WT Holdings Inc. v Argonaut Group, Inc. , 127 AD3d 544, 544 [1st Dept 2015]). [*3] The motion court also properly denied leave to amend to assert an abuse of process claim.

2024To the extent plaintiff bases the tortious interference claim on putative wrongful conduct or the claim that defendants were motivated solely by a desire to harm plaintiff, even according plaintiff the benefit of every possible favorable inference, plaintiff fails to allege [*2]any sufficiently egregious wrong where defendants were not at least partially acting for their own economic interest within the scope of the Lien Law ( Steiner Sports Mktg., Inc. v Weinreb , 88 AD3d 482, 483 [1st Dept 2011]; see also Levy v P & R Dental Strategies , 302 AD2d 255 [1st Dept 2003], lv denied 1 NY3d 501 [20

2024To the extent plaintiff bases the tortious interference claim on putative wrongful conduct or the claim that defendants were motivated solely by a desire to harm plaintiff, even according plaintiff the benefit of every possible favorable inference, plaintiff fails to allege [*2]any sufficiently egregious wrong where defendants were not at least partially acting for their own economic interest within the scope of the Lien Law ( Steiner Sports Mktg., Inc. v Weinreb , 88 AD3d 482, 483 [1st Dept 2011]; see also Levy v P & R Dental Strategies , 302 AD2d 255 [1st Dept 2003], lv denied 1 NY3d 501 [20

2024Merely alleging an improper motive does not suffice to establish a cause of action for abuse of process (see Marks v. Marks, 113 AD2d 744, 745 [2d Dept 1985]; see also Muro-Light v. Farley, 95 AD3d 846, 847 [2d Dept 2012][“Further, even accepting the allegations as true, an improper motive in bringing an action alone does not give rise to a cause of action to recover damages for abuse of process”]).

2024Merely establishing a wrongful or malicious motive is insufficient” (Raved v. Raved, 105 AD2d 735, 736 [2d Dept 1984]).

2024Merely alleging an improper motive does not suffice to establish a cause of action for abuse of process (see Marks v. Marks, 113 AD2d 744, 745 [2d Dept 1985]; see also Muro-Light v. Farley, 95 AD3d 846, 847 [2d Dept 2012][“Further, even accepting the allegations as true, an improper motive in bringing an action alone does not give rise to a cause of action to recover damages for abuse of process”]).

2024The failure of the abuse of process claim also renders plaintiff's tortious interference with business relations claim insufficient insofar as it is based on the abuse of process as an independent tort ( Carvel Corp. v Noonan , 3 NY3d 182, 190 [2004]).

2024Plaintiff failed to allege sufficiently the second and third elements of the abuse of process claim; that is, that "the person activating the process must be moved by a purpose to do harm without that which has been traditionally described as economic or social excuse or justification . . . [and the] defendant must be seeking some collateral advantage or corresponding detriment to the plaintiff which is outside the legitimate ends of the process" ( Andesco, Inc. v Page , 137 AD2d 349, 356 [1st Dept 1988] [internal quotation marks and citation omitted]).

2024To the extent plaintiff bases the tortious interference claim on putative wrongful conduct or the claim that defendants were motivated solely by a desire to harm plaintiff, even according plaintiff the benefit of every possible favorable inference, plaintiff fails to allege [*2]any sufficiently egregious wrong where defendants were not at least partially acting for their own economic interest within the scope of the Lien Law ( Steiner Sports Mktg., Inc. v Weinreb , 88 AD3d 482, 483 [1st Dept 2011]; see also Levy v P & R Dental Strategies , 302 AD2d 255 [1st Dept 2003], lv denied 1 NY3d 501 [20

2023Defendant's assertions on appeal that plaintiff continued this litigation for the wrongful purpose of coercing him to drop his earlier-filed lawsuit are conclusory, and the counterclaim, as pleaded, alleges that plaintiff commenced this action with a malicious motive, which is insufficient to sustain an abuse of process claim ( see Curiano v Suozzi , 63 NY2d 113, 117 [1984]; Hauser v Bartow , 273 NY 370, 373 [1937]).

2023Defendant did not demonstrate his entitlement to leave to replead, as he submitted no proposed amendments ( see CPLR 3025[b]; Vandashield Ltd v Isaacson , 146 AD3d 552, 554 [1st Dept 2017]).

2017The doctrine of res judicata does not bar the abuse of process claim at issue, since X-Act’s claims do not arise “out of the same transaction or series of transactions” as the prior negligence and breach of contract action against Flanders (see Zito v Harding, 110 AD3d 628, 629 [1st Dept 2013]).

2006Plaintiffs claims also are barred by the doctrine of res judicata and the related Hong Kong doctrine of abuse of process, the claims having been conclusively determined in the Hong Kong actions (see Watts v Swiss Bank Corp., 27 NY2d 270, 275 [1970]).