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