Bohm v. Holzberg

47 A.D.2d 764, 365 N.Y.S.2d 262, 1975 N.Y. App. Div. LEXIS 9061

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 1975
• Status: Published

Opinion

In an action for abuse of process, the parties cross-appeal from an order of the Supreme Court, Westchester County, dated January 7, 1974, as follows: (1) defendants appeal, as limited by their brief, from so much of the order as, upon reargument, adhered to a prior determination which denied their motion for summary judgment and (2) plaintiff appeals from so much of the order as denied his cross motion for summary judgment. Order modified, on the law, by deleting therefrom the provision that, upon reargument, the prior determination is adhered to and substituting therefor a provision that, upon reargument, defendants’ motion for summary judgment is granted and the complaint is dismissed. As so modified, order affirmed insofar as appealed from, without costs. We agree with defendants that, even if it be assumed that they were motivated by malice in issuing the garnishee execution based on defendant Holzberg’s judgment against plaintiff entered in the. Civil Court of the City of New York, New York County, on May 8, 1972, for $1,197.40, nevertheless, since that process was not perverted to a purpose outside of that for which it was intended, an action for abuse of process does not lie (Hauser v. Bartow, 273 N. Y. 370, 374; see 1 Harper & James, Law of Torts, § 4.9, p. 331). Further, giving plaintiff the benefit of every favorable inference which can be drawn from his allegations, the complaint does not set forth facts which show a prima facie tort. A cause of action must be judged by its allegations, not its label. Plaintiff’s allegations contain no mention of special damage, but only, of alleged compensatory and punitive damages. The law is clear that a cause of action for prima facie tort must contain a statement of reasonably identifiable losses sustained by the plaintiff, i.e., only actual or special damages can be recovered (Walsh Bros. v. Buppert, 7 A D 2d 896). Here, the complaint contains no such allegation and thus should have been dismissed (see Holt v. Columbia Broadcasting System, 22 A D 2d 791). We note, in passing, that this appeal is the latest stage in litigation which has obsessed these parties, all attorneys, since 1970. As far back as July, 1972, a Civil Court Judge expressed the hope that “ this unseemly dispute between counsel may be brought to an end ”. However, the parties, who should know better, rather than resolving their differences have instead cluttered the courts with their vendetta. While not passing judgment at this time, we call their attention to canon 30 of the Canons of Professional Ethics adopted by the New York State Bar Association, which proscribes litigation “ intended merely to harass or injure the opposite party ”. Cohalan, Acting P. J., Christ, Brennan, Munder and Shapiro, JJ., concur.