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COMMENCING A LAWSUIT, STANDING ALONE, DOES NOT CONSTITUTE ABUSE OF PROCESS (SECOND DEPT).

The Second Department determined defendants’ motion for summary judgment was properly granted, noting that commencing a lawsuit, standing alone, does not constitute abuse of process:

” Abuse of process has three essential elements: (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'” … . The mere commencement of a lawsuit cannot serve as the basis for a cause of action alleging abuse of process … . “[T]here must be an unlawful interference with one’s person or property under color of process in order that action for abuse of process may lie” … . Lynn v McCormick, 2017 NY Slip Op 06169, Second Dept 8-16-17

INTENTIONAL TORTS (ABUSE OF PROCESS, COMMENCING A LAWSUIT, STANDING ALONE, DOES NOT CONSTITUTE ABUSE OF PROCESS (SECOND DEPT))/ABUSE OF PROCESS (COMMENCING A LAWSUIT, STANDING ALONE, DOES NOT CONSTITUTE ABUSE OF PROCESS (SECOND DEPT))

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THE ESTATE OF THE MORTGAGOR WAS NOT A NECESSARY PARTY IN THIS FORECLOSURE ACTION; THE PROPERTY WAS CONVEYED BEFORE HER DEATH AND THE COMPLAINT DOES NOT SEEK A DEFICIENCY JUDGMENT (SECOND DEPT).
DEFENDANT DOCTOR WAS PROPERLY ALLOWED TO TESTIFY ABOUT HIS USUAL PRACTICE OR HABIT IN PERFORMING KNEE REPLACEMENT SURGERY (SECOND DEPT).
ALTHOUGH THE FAILURE TO FILE PROOF OF SERVICE IS NOT A JURISDICTIONAL DEFECT AND CAN BE CURED SUA SPONTE, HERE THE PLAINTIFFS DID NOT PROPERLY SEEK LEAVE TO EXCUSE THE FAILURE AND THE JUDGE DID NOT GRANT PLAINTIFFS LEAVE TO FILE A LATE PROOF OF SERVICE; THE SERVICE WHICH WAS ALLOWED TO STAND BY THE JUDGE WAS THEREFORE A NULLITY (SECOND DEPT).
A CONTRACTOR ALLEGED TO HAVE WORKED ON THE AREA OF THE ROADWAY WHERE PLAINTIFF SLIPPED AND FELL AND THE MUNICIPALITY DID NOT ELIMINATE QUESTIONS OF FACT ABOUT THEIR LIABILITY; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
ALTHOUGH THE PLANNING BOARD HELD THAT IT HAD JURISDICTION OVER THE PROPOSED DEVELOPMENT, A FINDING WITH WHICH PETITIONERS DISAGREED, THE BOARD ALSO HELD THE PETITIONERS COULD APPLY FOR A HARDSHIP EXEMPTION WHICH WAS NOT DONE, THE ACTION IS THEREFORE PREMATURE (SECOND DEPT).
PLAINTIFF WAS HIRED BY THE CITY TO INSTALL A SEWER AND DISCOVERED 45,000 TONS OF CONTAMINATED SOIL; DEFENDANT, WHO CAUSED THE CONTAMINATION, REFUSED TO REMEDIATE; PLAINTIFF, WHO REMEDIATED THE CONTAMINATION, STATED A CAUSE OF ACTION FOR UNJUST ENRICHMENT (SECOND DEPT).

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