| Sipsas v Vaz |
| 2008 NY Slip Op 03440 [50 AD3d 878] |
| April 15, 2008 |
| Appellate Division, Second Department |
| Ioannis P. Sipsas, Appellant, v Jose Vaz et al.,Respondents. |
—[*1] James J. Becker, New York, N.Y., for respondents.
In an action to recover damages for malicious prosecution and abuse of process, the plaintiffappeals from an order of the Supreme Court, Queens County (Agate, J.), dated June 8, 2007,which granted the defendants' motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff Ioannis P. Sipsas commenced this action to recover damages for maliciousprosecution and abuse of process arising from a prior civil action brought against him by thedefendants Jose Vaz and Antinea Vaz. In June 2006 the defendants withdrew their prior civilaction against the plaintiff as part of a settlement agreement. Since the prior action was notterminated in the plaintiff's favor, the Supreme Court properly granted that branch of thedefendants' motion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of actionalleging malicious prosecution (see Hoppenstein v Zemek, 62 AD2d 979 [1978];Pagliarulo v Pagliarulo, 30 AD2d 840 [1968]; see generally Guggenheimer vGinzburg, 43 NY2d 268 [1977]).
The Supreme Court also properly granted that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging abuse of process. "In itsbroadest sense, abuse of process may be defined as misuse or perversion of regularly issued legalprocess for a purpose not justified by the nature of the process" (Board of Educ. ofFarmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889,AFT AFL-CIO, 38 NY2d 397, 400 [1975]). The mere institution of a civil action bysummons and complaint is not sufficient to support a cause of action alleging abuse of process(see Curiano v Suozzi, 63 NY2d 113, 117 [1984]; [*2]Leon v Couri, 285 AD2d 493 [2001]). Moreover, the plaintiff'sallegation, that the defendants committed the tort of "abuse of process" by wrongfully naminghim as a defendant in the prior action, was insufficient to state such a cause of action (seeLeon v Couri, 285 AD2d 493 [2001]). Furthermore, the plaintiff failed to allege, both in hiscomplaint and in opposition to the defendants' motion, that the restraining order issued by theSupreme Court in the prior action was used to accomplish anything beyond its lawful purpose(see Pomeranz v Bourla, 257 AD2d 516 [1999]).
Accordingly, the Supreme Court properly granted the defendants' motion to dismiss thecomplaint.
The plaintiff's remaining contention is raised for the first time on appeal, and thus, it is notproperly before us. Mastro, J.P., Ritter, Carni and McCarthy, JJ., concur.