In finding the pleading insufficient for malicious prosecution and abuse of process causes of action, the Fourth Department explained the flaws:
Where, as here, the underlying action is civil in nature, the party alleging a claim for malicious prosecution must allege a special injury … . In the instant case, defendant “fail[ed] to plead that the civil proceeding involved wrongful interference with [his] person or property” … . Instead, defendant alleged damages amounting to “the physical, psychological or financial demands of defending a lawsuit,” which is insufficient to constitute a special injury for a claim of malicious prosecution … .
To the extent that defendant contends that the second counterclaim is for abuse of process and not malicious prosecution, we conclude that it must still be dismissed as well. “Insofar as the only process issued [here] was a summons, the process necessary to obtain jurisdiction and begin the lawsuit, there was no unlawful interference with [defendant’s] person or property because the institution of a civil action by summons and complaint is not legally considered process capable of being abused” … . Defendant alleges that plaintiff acted maliciously in bringing the action, but “[a] malicious motive alone . . . does not give rise to a cause of action for abuse of process” … . Reszka v Collins, 2016 NY Slip Op 00807, 4th Dept 2-5-16
MALICIOUS PROSECUTION (WHERE UNDERLYING ACTION IS CIVIL, SPECIAL INJURY MUST BE PLED)/ABUSE OF PROCESS (MALICIOUS MOTIVE ALONE DOES NOT GIVE RISE TO THE CAUSE OF ACTION)