Wolpert v. First National Bank

60 A.D.2d 577, 400 N.Y.S.2d 10, 1977 N.Y. App. Div. LEXIS 14516

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 1977
• Status: Published

Opinion

In an action, inter alia, to recover damages for abuse of process, defendants appeal from so much of an order of the Supreme Court, Nassau County, entered in Suffolk County on May 19, 1977, as denied that portion of their motion which sought summary judgment as to the first and second causes of action alleged in the complaint. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, the said portion of the motion is granted and the complaint dismissed. The causes of action for prima facie tort and abuse of process relate to the alleged (1) wrongful discharge of plaintiff, who was both a director and an employee at will, and (2) malicious assertion of a third-party complaint in connection with a stockholder’s derivative action brought against the other directors. Since the action was instituted more than three years after plaintiff’s discharge, the first cause of action (properly denominated by Special Term as one for prima facie tort), insofar as it related to plaintiff’s discharge, is time-barred by virtue of the provisions of CPLR 214; we therefore need not consider whether it would also have been barred by the governing one-year period of CPLR 215 (subd 3). (See Morrison v National Broadcasting Co., 19 NY2d 453; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 214:5, pp 429-430.) The remaining allegations of the first cause of action are subsumed in the second cause of action. Under the circumstances, the sole remaining gravamen, the assertion of a third-party complaint against plaintiff, allegedly for malicious purposes, is not a proper basis for either prima facie tort or abuse of process, since there was no "improper use of process after it is issued” (see Dean v Kochendorfer, 237 NY 384, 390; see, also, Williams v Williams, 23 NY2d 592, 596), or any element of "compelling the performance or forebearance [sic] of some prescribed act” (see Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397, 403; see, also, Osinoff v Muchnick, 53 AD2d 858). Cohalan, J. P., Margett, Damiani and Shapiro, JJ., concur.