Zoe Weber v. Stephen Chinitz et al. (2011)

MEMORANDUM OF DECISION ON MOTION TO STRIKE

On April 19, 2011, the plaintiff, Zoe Weber, filed a complaint, sounding in legal malpractice, against the defendants, Stephen S. Chinitz and Cristina Cabral Caruk.   On June 23, 2011, the sole appearing defendant, Caruk filed a counterclaim against the plaintiff.   On August 9, 2011, Caruk filed a third-party complaint against the plaintiff's counsel, James MuIhall, and plaintiff's counsel's firm, the Law Offices of Nixon and Mulhall, alleging abuse of process.

On August 18, 2011, the third-party defendants filed this motion to strike the third-party complaint, claiming it is premature and it fails to state a claim for abuse of process.   They cite Mazzochi v. Beck, 204 Conn. 490, 529 A.2d 171 (1987) in support of their argument that Caruk has not stated a claim for abuse of process because Caruk has not alleged that the third-party defendants undertook any action outside the normal course of proceedings while pursuing their claims against Caruk.

Our Supreme Court has considered “whether a cause of action for abuse of process may be brought to recover damages from attorneys who allegedly pursued litigation despite their discovery that their client's claim lacked merit.”   Mazzochi v. Beck, 204 Conn. 491.   In addition to acknowledging that it was alleged that the attorneys pursuing the litigation knew that their client's claim lacked merit, the court noted that there were no allegations that the attorneys (1) undertook any action outside of the normal course of proceedings, (2) “used unreasonable force, excessive attachments or extortionate methods to enforce the right of action” or (3) pursued the case “to gain any collateral advantage extraneous to its merits.”  Id., 493–94.   The court ultimately concluded “that although attorneys have a duty to their clients and to the judicial system not to pursue litigation that is utterly groundless, that duty does not give rise to a third party action for abuse of process unless the third party can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation.”  Id., 497.

In the present case, although Caruk alleges that the third party defendants brought the underlying claim against her “with an ulterior motive and improper purpose of accessing the assets of the third-party plaintiff,” no specific injury is alleged.   A party's loss of assets is not a specific injury outside of the normal contemplation of private litigation.   Thus, Caruk fails to state a claim for abuse of process.

The third-party defendant's motion to strike is granted.

Wagner, J., JTR

Wagner, Jerry, J.T.R.