Opinion
January 19, 1988
Appeal from the Supreme Court, Westchester County (Delaney, J.).
Ordered that the appeal from the order entered March 31, 1986, is dismissed, as that order was superseded by the order entered July 14, 1986, made upon reargument; and it is further,
Ordered that the order entered July 14, 1986, is reversed insofar as appealed from, on the law, that branch of the defendants' motion which was for summary judgment dismissing the second cause of action is granted, and the complaint dismissed in its entirety; and it is further,
Ordered that the order entered March 31, 1986, is modified accordingly; and it is further,
Ordered that the defendants are awarded one bill of costs.
The plaintiff Matthew A. Siegel commenced the instant action asserting two causes of action. In the first he alleged that a statement made in a letter written by the defendant Philip Smith of the defendant law firm of Smith, Panish Shapiro, P.C. to the Judge presiding over a matrimonial action, in which he and the defendant Smith represented adverse interests, was injurious to his professional reputation and, therefore, was libelous per se. In the second cause of action, the plaintiff contended that he had suffered, inter alia, emotional distress as the result of the abuse of process by the defendant law firm and the individual defendants. The process alleged to have been abused was the service of a summons and complaint upon the plaintiff in a libel action instituted by the defendant Sam Panish of the defendant law firm. The plaintiff further alleged that Panish sought to use the pending libel action as a means for coercing an unconscionable settlement in the underlying matrimonial action. The Supreme Court, Westchester County, dismissed the first cause of action but denied that branch of the defendants' motion which was for summary judgment dismissing the second cause of action. It found that triable issues of fact existed with regard to "the alleged intent to do harm without cause or justification by the defendants and whether or not such process was issued in a perverted manner so as to obtain a collateral objective by defendants". Upon reargument, the court adhered to its original determination. This appeal ensued. We reverse and dismiss the complaint in its entirety.
In order to sustain a cause of action to recover damages for abuse of process, the process complained of must involve an injury to or an interference with one's person or property (Curiano v Suozzi, 63 N.Y.2d 113, 116; Williams v Williams, 23 N.Y.2d 592, 596; Lewis v Pay Tel., 124 A.D.2d 559, 560). In this regard, "the institution of a civil action by summons and complaint is not legally considered process capable of being abused" (Curiano v Suozzi, supra, at 116; Lewis v Pay Tel., supra; Rebore v Pace, 115 A.D.2d 468). The only process issued in the libel action against the plaintiff herein was a summons and complaint. Thus, we conclude the plaintiff has failed to meet his burden of proving an unlawful interference with his person or property sufficient to support a claim of abuse of legal process.
Nor do we find evidentiary facts sufficient to make out a cause of action to recover damages for prima facie tort or intentional infliction of emotional distress such that the grant of summary judgment in favor of the defendants would be precluded (see, Alvord Swift v Muller Constr. Co., 46 N.Y.2d 276, 280-281). With respect to the claim to recover damages for prima facie tort, the plaintiff failed to set forth allegations of special damages or to demonstrate that malice was the defendants' only motive in commencing the prior lawsuit (see, Curiano v Suozzi, supra, at 117-118; Burns Jackson Miller Summit Spitzer v Lindner, 59 N.Y.2d 314, 333; Vevaina v Paccione, 125 A.D.2d 392). The plaintiff further failed to show that the defendants' conduct was "`so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized [society]'" (Fischer v Maloney, 43 N.Y.2d 553, 557, quoting from Restatement [Second] of Torts § 46, comment d). Thus, no cognizable claim to recover damages for intentional infliction of emotional distress is stated. Mollen, P.J., Thompson, Rubin and Spatt, JJ., concur.