| Dupree v Voorhees |
| 2009 NY Slip Op 09183 [68 AD3d 807] |
| December 8, 2009 |
| Appellate Division, Second Department |
| Kristin Dupree, Appellant, v Oliver Raymond VoorheesIII, Defendant, and Karyn A. Villar et al., Respondents. |
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In an action, inter alia, to recover damages for legal malpractice, abuse of process, andviolation of Judiciary Law § 487, the plaintiff appeals (1) from an order of the SupremeCourt, Suffolk County (Palmieri, J.), dated May 1, 2008, which granted the motion of thedefendants Karyn A. Villar and Dorothy A. Courten, in effect, pursuant to CPLR 3211 (a) (7), todismiss the third cause of action alleging abuse of process and the fourth cause of action alleginga violation of Judiciary Law § 487, and (2) from so much of an order of the same courtdated March 23, 2009, as, upon renewal, adhered to so much of the order dated May 1, 2008, asgranted those branches of the motion of the defendants Karyn A. Villar and Dorothy A. Courtenwhich were to dismiss the third cause of action alleging abuse of process and the fourth cause ofaction alleging a violation of Judiciary Law § 487 insofar as asserted against the defendantDorothy A. Courten.
Ordered that the appeal from the order dated May 1, 2008 is dismissed, without costs ordisbursements, as that order was superseded by the order dated March 23, 2009, made uponrenewal; and it is further,
Ordered that the order dated March 23, 2009 is modified, on the law, by deleting theprovision thereof, upon renewal, adhering to so much of the determination in the order datedMay 1, 2008, as granted that branch of the motion of the defendants Karyn A. Villar andDorothy A. Courten which was to dismiss the fourth cause of action alleging a violation ofJudiciary Law § 487 insofar as asserted against the defendant Dorothy A. Courten, andsubstituting therefor a provision, upon renewal, vacating so much of the original determinationin the order dated May 1, 2008, as granted that branch of the motion of the defendants Karyn A.Villar and Dorothy A. Courten which was to dismiss the fourth cause of action alleging aviolation of Judiciary Law § 487 insofar as asserted against the defendant Dorothy A.Courten, and thereupon denying that branch of the motion; as so modified, the order dated March23, 2009, is affirmed insofar as appealed from, without costs or disbursements.
Based upon events which occurred in an underlying divorce action, the plaintiff commencedthis action against her former attorney, Oliver Raymond Voorhees III, her former husband'sattorney, Karyn A. Villar, and Villar's law partner, Dorothy A. Courten. As is relevant [*2]to this appeal, the third cause of action sought damages for abuse ofprocess against Villar and Courten, alleging that Villar made certain misrepresentations inapplying for a receivership order in the underlying action. In the fourth cause of action, theplaintiff seeks treble damages against Villar and Courten under Judiciary Law § 487,alleging that Villar intended to deceive the court in connection with a receivership application.The complaint further alleged that because Courten and Villar were partners in the same lawfirm, Courten was vicariously liable for the damages the plaintiff sustained as a result of Villar'salleged wrongdoing.
Villar and Courten moved to dismiss the complaint insofar as asserted against them, ineffect, pursuant to CPLR 3211 (a) (7). The court granted Villar and Courten's motion. Theplaintiff thereafter moved, inter alia, for leave to renew. The court determined that a subsequentdecision of the Court of Appeals in Amalfitano v Rosenberg (12 NY3d 8 [2009]) provided a reason forgranting renewal, and, upon renewal, to deny that branch of the motion which was to dismiss thecomplaint as against Villar with respect to the Judiciary Law § 487 cause of action. Thecourt, however, denied the plaintiff relief with respect to the Judiciary Law § 487 cause ofaction against Courten, noting that Judiciary Law § 487 is rooted in the criminal law andthat it would be inconsistent with this history and the statute itself to hold a second attorneyresponsible for the deceit of another unless the attorney participated in or ratified thewrongdoer's actions. We disagree.
Partnership Law § 24 provides that "[w]here, by any wrongful act or omissionof any partner acting in the ordinary course of the business of the partnership, or with theauthority of his copartners, loss or injury is caused to any person, not being a partner in thepartnership, or any penalty is incurred, the partnership is liable therefor to the same extent as thepartner so acting or omitting to act" (Partnership Law § 24 [emphasis added]). PartnershipLaw § 26 (a) (1) provides that "[a]ll partners are liable . . . [j]ointly andseverally for everything chargeable to the partnership under section[ ] twenty-four." The pivotaltest for liability in this regard is whether the wrong was committed on behalf of and within thereasonable scope of the partnership business, not whether the wrongful act was criminal innature, or whether the other partners condoned the offending partner's actions (see Rudow vCity of New York, 642 F Supp 1456 [1986], affd 822 F2d 324 [1987]; Muka vWilliamson, 53 AD2d 950 [1976]; see also Clients' Sec. Fund of State of N.Y. vGrandeau, 72 NY2d 62 [1988]). Therefore, the Supreme Court erred in adhering to thedetermination in the order dated May 1, 2008, dismissing the Judiciary Law § 487 causeof action against Courten.
However, the Supreme Court correctly dismissed the third cause of action seeking damagesfor abuse of process against both Villar and Courten. Where process is used for the purpose forwhich it was intended, a cause of action to recover damages for abuse of process does not lie(see Curiano v Suozzi, 63 NY2d 113, 117 [1984]; Aluminum Mill Supply Corp. vLarkin, 129 AD2d 542 [1987]; Raved v Raved, 105 AD2d 735, 736 [1984]).
The plaintiff's remaining contentions are without merit or have been rendered academic inlight of our determination. Skelos, J.P., Eng, Leventhal and Chambers, JJ., concur.