Opinion
2012-06-15
Chester LISS, Plaintiff–Appellant, v. Mary FORTE and Carl Forte, Defendants–Respondents.
Law Offices of Mark David Blum, Manlius (Mark David Blum of Counsel), for Plaintiff–Appellant. Costello, Cooney & Fearon, PLLC, Syracuse (Manuel P. Karam of Counsel), for Defendants–Respondents.
Law Offices of Mark David Blum, Manlius (Mark David Blum of Counsel), for Plaintiff–Appellant. Costello, Cooney & Fearon, PLLC, Syracuse (Manuel P. Karam of Counsel), for Defendants–Respondents.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND LINDLEY, JJ.
MEMORANDUM:
Plaintiff appeals from an order granting defendants' motion for partial summary judgment dismissing the cause of action for abuse of process. By that cause of action, plaintiff alleged that Mary Forte (defendant) maliciously filed a false criminal complaint against him with the police in which she alleged that plaintiff, her neighbor, trespassed into her backyard to pick up waste from his dog. The police arrested plaintiff on a trespass charge and issued an appearance ticket to him. After the trespass charge was adjourned in contemplation of dismissal, plaintiff commenced this action seeking monetary damages for the emotional distress he allegedly suffered as a result of his arrest.
We conclude that Supreme Court properly granted defendants' motion. A plaintiff asserting a cause of action for abuse of process must plead and prove that there was “(1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective” ( Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324, citing Board of Educ. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL–CIO, 38 N.Y.2d 397, 403, 380 N.Y.S.2d 635, 343 N.E.2d 278). In addition, the plaintiff must plead and prove actual or special damages ( see Silberman v. Flaum, 225 A.D.2d 985, 986, 639 N.Y.S.2d 532;City Sts. Realty Corp. v. Resner, 174 A.D.2d 408, 571 N.Y.S.2d 13), although we note that legal fees incurred in defending against false criminal charges are sufficient ( see Parkin v. Cornell Univ., 78 N.Y.2d 523, 530, 577 N.Y.S.2d 227, 583 N.E.2d 939).
Here, defendants established that defendant did not use process “in a perverted manner to obtain a collateral objective” ( Curiano, 63 N.Y.2d at 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324), which generally requires “the improper use of process after it is issued” ( id. at 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324 [internal quotation marks omitted]; see Selinger v. Selinger, 210 A.D.2d 309, 620 N.Y.S.2d 277;Ronaldson v. Countryside Manor Condominium Bd. of Mgrs., 189 A.D.2d 808, 809, 592 N.Y.S.2d 459,lv. dismissed82 N.Y.2d 706, 601 N.Y.S.2d 585, 619 N.E.2d 663). Plaintiff in response failed to raise an issue of fact to defeat the motion ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Although plaintiff submitted evidence indicating that defendant may have filed a false criminal complaint against him out of spite, “[a] malicious motive alone ... does not give rise to a cause of action for abuse of process” ( Curiano, 63 N.Y.2d at 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324). As defendants contend, plaintiff failed to demonstrate that defendant otherwise “utilized the process in a manner inconsistent with the purpose for which it was designed” ( Minasian v. Lubow, 49 A.D.3d 1033, 1036, 856 N.Y.S.2d 255). The remedy for a party against whom a false criminal complaint is filed lies in the tort of malicious prosecution, and plaintiff is unable to pursue that tort because the charge against him resulted in an adjournment in contemplation of dismissal ( see Malanga v. Sears, Roebuck & Co., 109 A.D.2d 1054, 1054–1055, 487 N.Y.S.2d 194,affd.65 N.Y.2d 1009, 494 N.Y.S.2d 302, 484 N.E.2d 665).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.