Britt v. Nestor

Appellate Division of the Supreme Court of New York

Britt v. Nestor

17 A.D.3d 144, 791 N.Y.S.2d 829, 2005 N.Y. App. Div. LEXIS 3644

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 7, 2005

StatusPublished

Cited by1 cases

This text of 17 A.D.3d 144 (Britt v. Nestor) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Britt v. Nestor, 17 A.D.3d 144, 791 N.Y.S.2d 829, 2005 N.Y. App. Div. LEXIS 3644 (N.Y. Ct. App. 2005).

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Opinion

Order, Supreme Court, New York County (Rosalyn Richter, J.), entered July 1, 2004, which granted defendants’ motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs.

The mere filing of luxury decontrol applications, which is expressly permitted under New York City Administrative Code § 26-504.3, is an insufficient predicate for a claim for abuse of process (see generally Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397 [1975]). Moreover, plaintiff failed to show how the process unlawfully interfered with his person or property (Curiano v Suozzi, 63 NY2d 113 [1984]). As to the claim for malicious prosecution, plaintiff has failed to allege that he suffered special damages (Campion Funeral Home v State of New York, 166 AD2d 32 [1991], lv denied 78 NY2d 859 [1991), and, in any event, no final determination has yet been made in the underlying proceeding (see Broughton v State of New York, 37 NY2d 451, 459-460 [1975]).

We have considered plaintiffs remaining contentions and find them without merit. Concur—Tom, J.P., Andrias, Sullivan, Nardelli and Williams, JJ.

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Order, Supreme Court, New York County (Rosalyn Richter, J.), entered July 1, 2004, which granted defendants’ motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs.

The mere filing of luxury decontrol applications, which is expressly permitted under New York City Administrative Code § 26-504.3, is an insufficient predicate for a claim for abuse of process (see generally Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397 [1975]). Moreover, plaintiff failed to show how the process unlawfully interfered with his person or property (Curiano v Suozzi, 63 NY2d 113 [1984]). As to the claim for malicious prosecution, plaintiff has failed to allege that he suffered special damages (Campion Funeral Home v State of New York, 166 AD2d 32 [1991], lv denied 78 NY2d 859 [1991), and, in any event, no final determination has yet been made in the underlying proceeding (see Broughton v State of New York, 37 NY2d 451, 459-460 [1975]).

We have considered plaintiffs remaining contentions and find them without merit. Concur—Tom, J.P., Andrias, Sullivan, Nardelli and Williams, JJ.

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Bluebook (online)

17 A.D.3d 144, 791 N.Y.S.2d 829, 2005 N.Y. App. Div. LEXIS 3644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/britt-v-nestor-nyappdiv-2005.

Opinion

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