POMERANZ v. BOURLA (1999)

Supreme Court, Appellate Division, First Department, New York.

Paulette POMERANZ, et al., Plaintiffs-Appellants, v. Daniel BOURLA, Defendant-Respondent.

Decided: January 26, 1999

SULLIVAN, J.P., NARDELLI, WILLIAMS and ANDRIAS, JJ.

Paul H. Aloe and Carol E. Thurer, for Plaintiffs-Appellants. Albert H. Socolov, for Defendant-Respondent.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered March 10, 1998, which, to the extent appealed from, denied plaintiffs' motion to dismiss the defendant's counterclaim for malicious abuse of process, unanimously reversed, on the law, without costs, the motion granted and the counterclaim dismissed. The Clerk is directed to enter judgment accordingly.

The complaint was issued and used for its intended purpose, i.e., the recovery of $120,000 from defendant. Mere service of a summons and complaint “is not legally considered process capable of being abused [citation omitted]” and, thus there was no “unlawful interference with [defendant's] person or property” (Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324; Williams v. Williams, 23 N.Y.2d 592, 596, 298 N.Y.S.2d 473, 246 N.E.2d 333).

MEMORANDUM DECISION.

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