| Tenore v Kantrowitz, Goldhamer & Graifman, P.C. |
| 2010 NY Slip Op 06370 [76 AD3d 556] |
| August 10, 2010 |
| Appellate Division, Second Department |
| Thomas Tenore, Appellant, v Kantrowitz, Goldhamer &Graifman, P.C., Respondent. |
—[*1] Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (Michael L. Braunstein ofcounsel), respondent pro se.
In an action to recover damages for violation of Judiciary Law § 487, fraud, and abuseof process, the plaintiff appeals (1), as limited by his brief, from so much of an order of theSupreme Court, Rockland County (Kelly, J.), dated March 11, 2009, as denied those branches ofhis motion pursuant to CPLR 3211 (a) (7) and (b) which were to dismiss the defendant'scounterclaim and second, fourth, fifth, and sixth affirmative defenses, and (2) an order of thesame court dated May 4, 2009, which denied his motion for leave to reargue and, inter alia, todismiss the answer pursuant to CPLR 3216 or compel further disclosure pursuant to CPLR 3124.
Ordered that the order dated March 11, 2009, is reversed insofar as appealed from, on thelaw, and those branches of the plaintiff's motion pursuant to CPLR 3211 (a) (7) and (b) whichwere to dismiss the defendant's counterclaim and second, fourth, fifth, and sixth affirmativedefenses are granted; and it is further,
Ordered that the appeal from so much of the order dated May 4, 2009, as denied that branchof the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from anorder denying reargument; and it is further,
Ordered that the order dated May 4, 2009, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff contends that the Supreme Court erred in denying that branch of his motionpursuant to CPLR 3211 (a) (7) which was to dismiss the defendant's counterclaim to recoverdamages for abuse of process upon the ground that it fails to state a cause of action. We agree.The three essential elements of the tort of abuse of process are "(1) regularly issued process,either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of theprocess in a perverted manner to obtain a collateral objective" (Curiano v Suozzi, 63NY2d 113, 116 [1984]). However, the mere commencement of a civil action by summons andcomplaint does not constitute abuse of process (see Curiano v Suozzi, 63 NY2d at 116;Schwartz v Sayah, 72 AD3d790 [2010]; Greco vChristoffersen, 70 AD3d 769, 770 [2010]), and the gist of the tort is "the improper useof process after it [*2]is issued" by "an unlawful interferencewith one's person or property" (Williams v Williams, 23 NY2d 592, 596 [1969] [internalquotation marks omitted]). Here, although the defendant law firm alleges that the plaintiffcommenced this action with the collateral objective of inflicting economic harm and obtaining atactical advantage in a pending divorce action, a malicious motive alone does not give rise to acause of action to recover damages for abuse of process (see Curiano v Suozzi, 63 NY2dat 117; Matthews v New York City Dept. of Social Servs., Child Welfare Admin., 217AD2d 413, 415 [1995]; Butler v Ratner, 210 AD2d 691, 693 [1994]), and the defendantdid not allege that the plaintiff interfered with the defendant's property rights after the issuanceof process by resorting to a provisional remedy (see Williams v Williams, 23 NY2d at596 n 1; Greco v Christoffersen, 70 AD3d at 770; Island Fed. Credit Union v Smith, 60 AD3d 730, 733 [2009]).Accordingly, the defendant's counterclaim to recover damages for abuse of process failed to statea cause of action and should have been dismissed.
The Supreme Court also should have granted those branches of the plaintiff's motionpursuant to CPLR 3211 (b) which were to dismiss the defendant's second, fourth, fifth, and sixthaffirmative defenses. "A party may move for judgment dismissing one or more defenses, on theground that a defense is not stated or has no merit" (CPLR 3211 [b]). Here, the plaintiffsustained his burden of demonstrating that the challenged defenses are without merit as a matterlaw because they either do not apply under the factual circumstances of this case, or fail to statea defense (see Greco v Christoffersen, 70 AD3d at 771; Vita v New York Waste Servs., LLC,34 AD3d 559 [2006]).
However, the Supreme Court properly denied those branches of the plaintiff's separatemotion which sought, inter alia, to dismiss the answer pursuant to CPLR 3216 or compel furtherdisclosure pursuant to CPLR 3124. The plaintiff's supporting papers were inadequate becausethey failed to specify which interrogatories the defendants allegedly failed to adequately answer,and which documents the defendants failed to produce (see Clark v Schuylerville Cent. School Dist., 57 AD3d 1145, 1146[2008]; American Reliance Ins. Co. v National Gen. Ins. Co., 174 AD2d 591, 593[1991]). Dillon, J.P., Miller, Eng and Chambers, JJ., concur.