MAGO LLC v. SINGH (2008)

In an action, inter alia, to recover unpaid rent, the defendant appeals from an order of the Supreme Court, Westchester County (Collabella, J.), entered July 5, 2005, which granted that branch of the plaintiff's motion which was pursuant to CPLR 3211(a)(7) to dismiss the counterclaims for failure to state a cause of action.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted that branch of the plaintiff's motion which was pursuant to CPLR 3211(a)(7) to dismiss the counterclaims.   New York does not recognize a common-law cause of action alleging harassment (see Edelstein v. Farber, 27 A.D.3d 202, 811 N.Y.S.2d 358;  Hartman v. 536/540 E. 5th St. Equities, Inc., 19 A.D.3d 240, 797 N.Y.S.2d 73;  Burrell v. International Assn. of Firefighters, 216 A.D.2d 346, 628 N.Y.S.2d 355;  Couch v. Schmidt, 204 A.D.2d 951, 953, 612 N.Y.S.2d 511;  Goldstein v. Tabb, 177 A.D.2d 470, 471, 575 N.Y.S.2d 902).   The proper remedy for a violation of the prohibition against harassment in Rent Stabilization Code (9 NYCRR) § 2525.5 is a complaint to the Division of Housing and Community Renewal (see 9 NYCRR 2526.2[c][2];  Sohn v. Calderon, 78 N.Y.2d 755, 765, 768, 579 N.Y.S.2d 940, 587 N.E.2d 807;  Edelstein v. Farber, 27 A.D.3d 202, 811 N.Y.S.2d 358).

To the extent that the defendant's counterclaims were predicated on abuse of process, the mere commencement of a civil action, without unlawful interference with person or property, is insufficient to state a cause of action for abuse of process (see Williams v. Williams, 23 N.Y.2d 592, 596, 298 N.Y.S.2d 473, 246 N.E.2d 333;  Walentas v. Johnes, 257 A.D.2d 352, 354, 683 N.Y.S.2d 56;  Artzt v. Greenburger, 161 A.D.2d 389, 390, 555 N.Y.S.2d 127).   Moreover, the institution of a civil action by summons and complaint is not legally considered process capable of being abused (see Curiano v. Suozzi, 63 N.Y.2d 113, 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324;  Hoppenstein v. Zemek, 62 A.D.2d 979, 980, 403 N.Y.S.2d 542).   The counterclaims were insufficient to state a cause of action alleging abuse of process since they failed to allege “any actual misuse of the process to obtain an end outside its proper scope” (Hornstein v. Wolf, 67 N.Y.2d 721, 723, 499 N.Y.S.2d 938, 490 N.E.2d 857;  see Reisman v. Kerry Lutz, P.C., 6 A.D.3d 418, 774 N.Y.S.2d 345).

To the extent that the counterclaims sought to recover damages for intentional infliction of emotional distress, the allegations either lack evidentiary support, or fell short of the requisite extreme and outrageous conduct (see Hartman v. 536/540 E. 5th St. Equities, 19 A.D.3d 240, 797 N.Y.S.2d 73;  Jacobs v. 200 E. 36th Owners Corp., 281 A.D.2d 281, 282, 722 N.Y.S.2d 137;  Glendora v. Walsh, 227 A.D.2d 377, 642 N.Y.S.2d 545).

The defendant's remaining contentions are not properly before this Court (see e.g. Mortgage Elec. Registration Sys., Inc. v. McDuffie, 33 A.D.3d 893, 895, 825 N.Y.S.2d 224;  Eades v. Tadao Ogura, M.D., P.C., 185 A.D.2d 266, 267, 587 N.Y.S.2d 209) or without merit.