Frank v. Coe

51 A.D.2d 992, 381 N.Y.S.2d 102, 1976 N.Y. App. Div. LEXIS 11743

Opinion

In an action to recover damages for abuse of process, plaintiffs appeal from (1) an order of the Supreme Court, Nassau County, dated July 28, 1975, which granted defendants’ motion to dismiss the complaint and (2) a decision of the same court, dated July 25, 1975, upon which the order was made. Appeal from the decision dismissed, without costs or disbursements. No appeal lies from a decision. Order affirmed, without costs or disbursements. " 'The gist of the action for abuse of process lies in the improper use of process after it is issued’ ” (Hauser v Bartow, 273 NY 370, 373). Plaintiffs are in effect complaining of the institution of an action against them and not of any wrong committed in the execution of process during the course of that suit (see Miller v Stern, 262 App Div 5, 8). Hopkins, Acting P. J., Cohalan, Damiani, Christ and Titone, JJ., concur.