| Lynn v McCormick |
| 2017 NY Slip Op 06169 [153 AD3d 688] |
| August 16, 2017 |
| Appellate Division, Second Department |
[*1]
| John W. Lynn et al., Appellants, v Robert J.McCormick, Individually and as President/CEO of Trustco Bank, et al.,Respondents. |
John W. Lynn and Geralynn Lynn, Pomona, NY, appellants pro se.
Bailey, Kelleher & Johnson, P.C., Albany, NY (John W. Bailey of counsel), forrespondents.
In an action, inter alia, to recover damages for abuse of process, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Rockland County (Loehr,J.), dated June 2, 2015, as granted that branch of the defendants' motion which was for summaryjudgment dismissing the cause of action alleging abuse of process.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted that branch of the defendants' motion which was forsummary judgment dismissing the cause of action alleging abuse of process. " 'Abuse ofprocess has three essential elements: (1) regularly issued process, either civil or criminal, (2) anintent to do harm without excuse or justification, and (3) use of the process in a perverted mannerto obtain a collateral objective' " (Greco v Christoffersen, 70 AD3d 769, 770 [2010], quotingCuriano v Suozzi, 63 NY2d 113, 116 [1984]). The mere commencement of a lawsuitcannot serve as the basis for a cause of action alleging abuse of process (see Curiano vSuozzi, 63 NY2d at 117; Greco v Christoffersen, 70 AD3d at 770). "[T]here must bean unlawful interference with one's person or property under color of process in order that actionfor abuse of process may lie" (Williams v Williams, 23 NY2d 592, 596 [1969]).
Here, the defendants established their prima facie entitlement to judgment as a matter of lawdismissing the cause of action alleging abuse of process. In opposition, the plaintiffs failed toraise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Further, the Supreme Court properly rejected the plaintiffs' contention, pursuant to CPLR3212 (f), that summary judgment was premature because discovery was not yet complete. Theplaintiffs failed to demonstrate that discovery might lead to relevant evidence or that the factsessential to justify opposition to the motion were exclusively within the knowledge and controlof the defendants (see CPLR 3212 [f]; Singh v Avis Rent A Car Sys., Inc., 119 AD3d 768, 770 [2014]; [*2]Boorstein v 1261 48th St. Condominium, 96 AD3d 703,704 [2012]). The plaintiffs' mere hope that some evidence might be uncovered during furtherdiscovery is insufficient to deny summary judgment (see Singh v Avis Rent A Car Sys.,Inc., 119 AD3d at 770; Lopez v WSDistrib., Inc., 34 AD3d 759, 760 [2006]). Dillon, J.P., Austin, Roman and Cohen, JJ.,concur.