Segreto v. Petrelli Associates, Inc.

285 A.D.2d 499, 728 N.Y.S.2d 488, 2001 N.Y. App. Div. LEXIS 7073

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 9, 2001
• Status: Published

Opinion

—In an action to recover damages for malicious prosecution, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Klein, J.), dated September 26, 2000, which granted the defendant’s motion to dismiss the complaint.

Ordered that the order is affirmed, with costs.

The torts of abuse of process and malicious prosecution possess the common element of improper purpose in the use of legal process (see, Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397). In a prior action, the plaintiffs’ second counterclaim alleging abuse of process was properly dismissed (see, Petrelli Assocs. v Germano, 277 AD2d 439). Accordingly, the doctrine of collateral estoppel precludes the plaintiffs’ attempt to relitigate the issues decided in the prior action (see, Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640; see also, Hornstein v Wolf, 67 NY2d 721).

The plaintiffs’ remaining contentions are without merit. Altman, J. P., Friedmann, Smith and Adams, JJ., concur.