Osinoff v. Muchnick

53 A.D.2d 858, 385 N.Y.S.2d 583, 1976 N.Y. App. Div. LEXIS 13688

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1976
• Status: Published

Opinion

In an action to recover damages for abuse of process, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated November 25, 1975, which granted appellants’ motion to dismiss the complaint as against them. Order affirmed, with $50 costs and disbursements. Plaintiffs allege that the complaint (drawn by appellants Ranter, Blodnick and Haber) in a previous action (commenced by defendants Muchnick) constituted an abuse of process. That previous action related solely to a disagreement between the parties, yet the complaint contained arguably irrelevant allegations of fraud against the State of New York. Plaintiffs claim that those allegations "were included therein for the sole purpose of compelling these plaintiffs, through fear and duress, to comply with unreasonable and unfounded demands made by the defendants”. The Court of Appeals recently reviewed the requirements for an abuse of process action: (1) regularly issued process; (2) intent to harm; and (3) use of the process in a perverted manner to obtain a collateral objective (Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397, 403-404). Here, although the complaint in the prior action was regularly issued and the allegations of fraud indicate an intention to harm plaintiffs by exposure to investigation, the third requirement is not met. "The gist of the action for abuse of process lies in the improper use of process after it is issued” (Dean v Kochendorfer, 237 NY 384, 390). While plaintiffs here claim that appellants had a collateral objective (coercing compliance with unreasonable demands), the process itself was not susceptible to improper use. Any improper use could be avoided by a simple motion to strike the allegations of fraud. Scandalous allegations in a complaint cannot in themselves give rise to an action for abuse of process (Cardy v Maxwell, 9 Misc 2d 329). Hopkins, Acting P. J., Martuscello, Margett, Rabin and Hawkins, JJ., concur.