Phillipe v. American Express Travel Related Services Co.

Appellate Division of the Supreme Court of New York

Phillipe v. American Express Travel Related Services Co.

174 A.D.2d 470, 571 N.Y.S.2d 711, 1991 N.Y. App. Div. LEXIS 8492

Appellate Division of the Supreme Court of the State of New York·Decided June 18, 1991·Published·Cited by 3 cases

Opinion

—Order, Supreme Court, New York County (C. Beauchamp Ciparick, J.), entered February 5, 1991, which granted defendant’s motion pursuant to CPLR 3211 (a) (7) and dismissed the amended complaint, unanimously modified, on the law, to the extent of denying the motion to dismiss the first cause of action and reinstating that cause of action and, as so modified, the order is otherwise affirmed, without costs.

Plaintiff, against whom defendant obtained a default judgment for $9,470.53 in charges billed to her American Express card, brings this class action on behalf of herself and all others similarly situated, who, it is alleged, had default judgments entered against them on the basis of so-called "sewer service” and false affidavits of non-military service.

In dismissing the first cause of action for abuse of process, the IAS court concluded that plaintiff failed to allege any facts sufficient to demonstrate that defendant acted with intent to cause harm without excuse or justification and found that, albeit defective, the use of process here was not improper or perverted, inasmuch as the action was to collect an apparently valid debt.

However, construing the complaint liberally and accepting plaintiffs allegations as true at this stage, as we must, the allegations of a large scale pattern of "sewer service” are sufficient, if proven, to establish a cause of action for abuse of process.

We have considered plaintiffs other contentions and find them without merit. Concur—Carro, J. P., Milonas, Wallach and Kupferman, JJ.

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—Order, Supreme Court, New York County (C. Beauchamp Ciparick, J.), entered February 5, 1991, which granted defendant’s motion pursuant to CPLR 3211 (a) (7) and dismissed the amended complaint, unanimously modified, on the law, to the extent of denying the motion to dismiss the first cause of action and reinstating that cause of action and, as so modified, the order is otherwise affirmed, without costs.

Plaintiff, against whom defendant obtained a default judgment for $9,470.53 in charges billed to her American Express card, brings this class action on behalf of herself and all others similarly situated, who, it is alleged, had default judgments entered against them on the basis of so-called "sewer service” and false affidavits of non-military service.

In dismissing the first cause of action for abuse of process, the IAS court concluded that plaintiff failed to allege any facts sufficient to demonstrate that defendant acted with intent to cause harm without excuse or justification and found that, albeit defective, the use of process here was not improper or perverted, inasmuch as the action was to collect an apparently valid debt.

However, construing the complaint liberally and accepting plaintiffs allegations as true at this stage, as we must, the allegations of a large scale pattern of "sewer service” are sufficient, if proven, to establish a cause of action for abuse of process.

We have considered plaintiffs other contentions and find them without merit. Concur—Carro, J. P., Milonas, Wallach and Kupferman, JJ.

Phillipe v. American Express Travel Related Services Co., 174 A.D.2d 470, 571 N.Y.S.2d 711, 1991 N.Y. App. Div. LEXIS 8492 (N.Y. Ct. App. 1991).

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174 A.D.2d 470 (Phillipe v. American Express Travel Related Services Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.