BENINATI v. Carol DiNozzi, Defendant. (1997)

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered February 29, 1996, which granted defendant-respondent's motion for summary judgment dismissing the complaint as against him as barred by res judicata and imposed sanctions against plaintiff, unanimously affirmed, with costs.

 The complaint was properly dismissed on the ground that, styled as one for abuse of process, it adds nothing new of substance to plaintiff's previous complaint that, styled as one for malicious prosecution, was dismissed for failure to state a cause of action (see, Schneider v. David, 197 A.D.2d 363, 602 N.Y.S.2d 130). “[I]t is well settled, under the transactional-analysis approach adopted by this State in deciding res judicata issues, that ‘once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.’ ” (id.).   We also agree with the IAS court that service of this second complaint was frivolous and warrants imposition of actions (see, Papa v. Burrows, 186 A.D.2d 375, 588 N.Y.S.2d 171, lv. denied 81 N.Y.2d 707, 597 N.Y.S.2d 937, 613 N.E.2d 969).   We would add that dismissal is also warranted on the additional ground of the Statute of Limitations, which, for abuse of process, an intentional tort, is one year, not three years as the IAS court held (see, Gallagher v. Directors Guild, 144 A.D.2d 261, 262, 533 N.Y.S.2d 863, lv. denied 73 N.Y.2d 708, 540 N.Y.S.2d 1003, 538 N.E.2d 355 citing Hansen v. Petrone, 124 A.D.2d 782, 508 N.Y.S.2d 500).   Here, the allegedly abusive criminal proceeding was initiated by defendants in or about August 1992 and dismissed in or about April, 1993;  plaintiff did not commence the instant action until March, 1995.   Thus, the action is time-barred regardless of whether the one-year period is deemed to have begun upon the initiation of the criminal proceeding (cf., Cunningham v. State of New York, 53 N.Y.2d 851, 440 N.Y.S.2d 176, 422 N.E.2d 821) or its termination.

MEMORANDUM DECISION.