| Mago, LLC v Singh |
| 2008 NY Slip Op 00461 [47 AD3d 772] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Mago, LLC, Respondent, v Amrit Joy Singh,Appellant. |
—[*1] Russo, Keane & Toner, LLP, New York, N.Y. (Christopher G. Keane of counsel), forrespondent.
In an action, inter alia, to recover unpaid rent, the defendant appeals from an order of theSupreme Court, Westchester County (Collabella, J.), entered July 5, 2005, which granted thatbranch of the plaintiff's motion which was pursuant to CPLR 3211 (a) (7) to dismiss thecounterclaims for failure to state a cause of action.
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted that branch of the plaintiff's motion which was pursuantto CPLR 3211 (a) (7) to dismiss the counterclaims. New York does not recognize a common-lawcause of action alleging harassment (seeEdelstein v Farber, 27 AD3d 202 [2006]; Hartman v 536/540 E. 5th St. Equities, Inc., 19 AD3d 240 [2005];Burrell v International Assn. of Firefighters, 216 AD2d 346 [1995]; Couch vSchmidt, 204 AD2d 951, 953 [1994]; Goldstein v Tabb, 177 AD2d 470, 471 [1991]).The proper remedy for a violation of the prohibition against harassment in Rent StabilizationCode (9 NYCRR) § 2525.5 is a complaint to the Division of Housing and CommunityRenewal (see 9 NYCRR 2526.2 [c] [2]; Sohn v Calderon, 78 NY2d 755, 765,768 [1991]; Edelstein v Farber, 27AD3d 202 [2006]).
To the extent that the defendant's counterclaims were predicated on abuse of process, themere commencement of a civil action, without unlawful interference with person or property, isinsufficient to state a cause of action for abuse of process (see Williams v Williams, 23NY2d 592, 596 [1969]; Walentas v Johnes, 257 AD2d 352, 354 [1999]; Artzt vGreenburger, 161 AD2d 389, 390 [1990]). Moreover, [*2]theinstitution of a civil action by summons and complaint is not legally considered process capableof being abused (see Curiano v Suozzi, 63 NY2d 113, 117 [1984]; Hoppenstein vZemek, 62 AD2d 979, 980 [1978]). The counterclaims were insufficient to state a cause ofaction alleging abuse of process since they failed to allege "any actual misuse of the process toobtain an end outside its proper scope" (Hornstein v Wolf, 67 NY2d 721, 723 [1986]; see Reisman v Kerry Lutz, P.C., 6AD3d 418 [2004]).
To the extent that the counterclaims sought to recover damages for intentional infliction ofemotional distress, the allegations either lack evidentiary support, or fell short of the requisiteextreme and outrageous conduct (seeHartman v 536/540 E. 5th St. Equities, Inc., 19 AD3d 240 [2005]; Jacobs v 200 E.36th Owners Corp., 281 AD2d 281, 282 [2001]; Glendora v Walsh, 227 AD2d 377[1996]).
The defendant's remaining contentions are not properly before this Court (see e.g. Mortgage Elec. Registration Sys.,Inc. v McDuffie, 33 AD3d 893, 895 [2006]; Eades v Tadao Ogura, M.D., P.C.,185 AD2d 266, 267 [1992]) or without merit. Skelos, J.P., Ritter, Miller and Covello, JJ.,concur.