ABUSE OF PROCESS AND ATTORNEY’S FEES COUNTERCLAIMS PROPERLY DISMISSED IN THIS DISPUTE BETWEEN BROKERS OVER A COMMISSION, CRITERIA FOR BOTH COUNTERCLAIMS EXPLAINED.
In a dispute between real estate brokers over plaintiff’s entitlement to a percentage of a commission, the Second Department determined defendants’ counterclaims for abuse of process, prima facie tort, tortious interference with prospective business relations, and attorney’s fees were properly dismissed. The (unsuccessful) claim for attorney’s fees was based upon language in a real estate policy and procedure manual the language of which was deemed too vague to supplant the general rule that parties are responsible for their own attorney’s fees. With regard to the abuse of process and attorney’s fees claims, the court explained:
“The three essential elements of the tort of abuse of process 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'” … . “[T]he gist of the tort is the improper use of process after it is issued’ by an unlawful interference with one’s person or property'”… . Here, the gravamen of the first counterclaim was that the plaintiff initiated this lawsuit with the intent to harm the defendants, knowing that the brokerage community would find out about the lawsuit, which would damage the defendants’ ability to do business in that community. However, “the institution of a civil action by summons and complaint is not legally considered process capable of being abused” … . Moreover, there was no allegation that the plaintiff improperly used process after it was issued. Furthermore, “a malicious motive alone does not give rise to a cause of action to recover damages for abuse of process” … . * * *
In the fourth counterclaim the defendants sought to recover attorneys’ fees incurred in defending this action pursuant to a provision in their “Policy & Procedure Manual,” which states, inter alia, that “[i]f a dispute arises due to a commission and a legal action is commenced as a result thereof, the costs of the legal action will be deducted from the fee collected,” and “[i]f [a] suit is a result of an agent’s action, he/she will be responsible for payment of damages incurred as a result.” Since “a promise by one party to a contract to indemnify the other for attorney’s fees incurred in litigation between them is contrary to the well-understood rule that parties are responsible for their own attorney’s fees, the court should not infer a party’s intention to waive the benefit of the rule unless the intention to do so is unmistakably clear from the language of the promise” … . Here, the provision relied upon by the defendants is vague, and a promise by the plaintiff to indemnify the defendants for attorneys’ fees incurred in litigation between them cannot be clearly implied from the language and purpose of the entire manual. Goldman v Citicore I, LLC, 2017 NY Slip Op 03156, 2nd Dept 4-26-17
REAL ESTATE (ABUSE OF PROCESS AND ATTORNEY’S FEES COUNTERCLAIMS PROPERLY DISMISSED IN THIS DISPUTE BETWEEN BROKERS OVER A COMMISSION, CRITERIA FOR BOTH COUNTERCLAIMS EXPLAINED)/INTENTIONAL TORTS (ABUSE OF PROCESS AND ATTORNEY’S FEES COUNTERCLAIMS PROPERLY DISMISSED IN THIS DISPUTE BETWEEN BROKERS OVER A COMMISSION, CRITERIA FOR BOTH COUNTERCLAIMS EXPLAINED)/ABUSE OF PROCESS (ABUSE OF PROCESS AND ATTORNEY’S FEES COUNTERCLAIMS PROPERLY DISMISSED IN THIS DISPUTE BETWEEN BROKERS OVER A COMMISSION, CRITERIA FOR BOTH COUNTERCLAIMS EXPLAINED)/COMMISSIONS (REAL ESTATE, ABUSE OF PROCESS AND ATTORNEY’S FEES COUNTERCLAIMS PROPERLY DISMISSED IN THIS DISPUTE BETWEEN BROKERS OVER A COMMISSION, CRITERIA FOR BOTH COUNTERCLAIMS EXPLAINED)