You are here: / / Elements of Malicious Prosecution and Abuse of Process Explained
, ,

Elements of Malicious Prosecution and Abuse of Process Explained

In reversing the pre-answer dismissal of a malicious prosecution cause of action and affirming the dismissal on an abuse of process cause of action, the Third Department explained the elements of both:

…[W]e conclude that Supreme Court erred in dismissing plaintiff’s malicious prosecution cause of action. The elements of such a claim are “(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” … . As is particularly relevant here, “[i]n order for a civilian complainant to be considered to have initiated a criminal proceeding, ‘it must be shown that [the complainant] played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act'” … .  * * *

With respect to the abuse of process claim, the three essential elements are “(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” … . In general, such a claim “will only lie for improperly using process after it is issued” …, and a malicious motive alone is insufficient to give rise to a cause of action to recover for abuse of process … . Here, plaintiff’s allegations in the complaint pertaining to this cause of action, even construed liberally, fail to allege that defendant actually used process improperly — either the order of protection or the arrest warrant — “in a manner inconsistent with the purpose for which it was designed” … . Place v Ciccotelli, 2014 NY Slip Op 07237, 3rd Dept 10-23-14

 

You might also like
STATUTE REQUIRING TIMELY NOTICE OF THE ACCIDENT DID NOT REQUIRE NOTICE OF ALL THE INJURIES STEMMING FROM THE ACCIDENT.
THE WARRANTLESS SEARCHES OF CLOSED CONTAINERS WERE NOT JUSTIFIED BY THE ITEMS BEING IN DEFENDANT’S “GRABBABLE” AREA OR BY “EXIGENT CIRCUMSTANCES;” CONVICTION REVERSED (THIRD DEPT).
ATTORNEY FOR THE CHILD (AFC) SHOULD HAVE BEEN APPOINTED IN THIS CUSTODY MODIFICATION PROCEEDING, MATTER REMITTED (THIRD DEPT). ​
THERE IS NO NEED TO FILE AN AFFIDAVIT OF SERVICE AFTER SERVICE OF A WARRANT AND NOTICE OF EVICTION; THE MATTER WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).
Spontaneous Statements Made After Request for Counsel Properly Admitted—911 Call Properly Admitted as an Excited Utterance
THERE WAS NO EVIDENCE DEFENDANT SHARED THE ATTACKERS’ INTENT TO ROB THE VICTIM; DEFENDANT’S ROBBERY CONVICTIONS UNDER AN ACCOMPLICE-LIABILITY THEORY REVERSED (THIRD DEPT). ​
SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED.
THE EVIDENCE DID NOT SUPPORT THE GROUND FOR SUPPRESSION OF A SHOTGUN AND SHOTGUN SHELL RELIED ON BY COUNTY COURT; ALTHOUGH THE PEOPLE RAISED OTHER GROUNDS FOR JUSTIFICATION OF THE SEARCH AND SEIZURE, THOSE GROUNDS CANNOT BE ADDRESSED ON APPEAL BECAUSE COUNTY COURT DID NOT RULE ON THEM; MATTER REMITTED FOR CONSIDERATION OF THE PEOPLE’S OTHER ARGUMENTS (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Attack on Plaintiff Upon Leaving Defendant-Lodge’s Premises Not Foreseeable—Landowner... In a Slip and Fall Case, Plaintiff Was Unable to Raise a Question of Fact About...