You are here: / / IN THIS FORECLOSURE ACTION, DEFENDANT’S COUNTERCLAIMS FOR ABUSE OF...
, ,

IN THIS FORECLOSURE ACTION, DEFENDANT’S COUNTERCLAIMS FOR ABUSE OF PROCESS AND MALICIOUS PROSECUTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined defendant’s (Yeshiva’s) counterclaims for abuse of process and malicious prosecution should have been dismissed:

Supreme Court should have granted those branches of Maspeth’s [the bank’s] motion which were to dismiss Yeshiva’s second and third counterclaims, sounding in abuse of process and malicious prosecution, respectively. To state a cause of action to recover damages for abuse of process, a party must allege the existence of (1) regularly issued process, (2) an intent to do harm without excuse or justification, and (3) the use of process in a perverted manner to obtain a collateral objective … . Here, Yeshiva failed to allege any actual misuse of the process to obtain an end outside its proper scope … . Moreover, “[t]he elements of the tort of malicious prosecution of a civil action are (1) prosecution of a civil action against the plaintiff, (2) by or at the instance of the defendant, (3) without probable cause, (4) with malice, (5) which terminated in favor of the plaintiff, and (6) causing special injury” … . Here, Yeshiva failed to adequately allege malice on the part of Maspeth in commencing the action, a termination of the action in favor of Yeshiva, or the requisite special injury. Maspeth Fed. Sav. & Loan Assn. v Elizer, 2021 NY Slip Op 05030, Second Dept 9-22-21

 

You might also like
THE MERE DISCONTINUANCE OF THE PRIOR FORECLOSURE ACTION DID NOT DE-ACCELERATE THE MORTGAGE DEBT; EXPLICIT NOTICE OF DE-ACCELERATION IS REQUIRED EITHER IN THE MOTION TO DISCONTINUE ITSELF OR IN A SEPARATE NOTICE; THEREFORE THE INSTANT FORECLOSURE ACTION IS TIME-BARRED (SECOND DEPT).
THERE WAS GOOD CAUSE FOR THE 31 YEAR DELAY IN INDICTING DEFENDANT FOR MURDER (SECOND DEPT).
A Prank Played Upon Defendant Driver by a Passenger Warranted Instructing the Jury on the Emergency Doctrine
Complaint Can Not Be Deemed a Late Notice of Claim/Application to File a Late Notice of Claim Can Not Be Granted After the Statute of Limitations Has Run/City Is Not Required to Plead the Failure to File a Notice of Claim as a Defense/Participation in Discovery Did Not Preclude the City from Moving to Dismiss Based Upon Plaintiff’s Failure to File a Notice of Claim (After the Statute of Limitations Had Run)
Res Judicata Doctrine Precluded Suit Despite Naming Additional Parties and Alleging Different Causes of Action and Legal Theories
PLAINTIFF ALLEGED SHE WAS FORCED TO WALK IN THE STREET, WHERE SHE WAS STRUCK BY A CAR, BECAUSE THE COUNTY HAD OBSTRUCTED THE SIDEWALK WITH SNOW, COUNTY’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT).
ALTHOUGH THE BANK’S MOTION FOR SUMMARY JUDGMENT WAS NOT OPPOSED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, THE BANK DID NOT DEMONSTRATE STANDING WITH EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).
MOTHER’S PETITION FOR SOLE CUSTODY SHOULD NOT HAVE BEEN GRANTED UPON FATHER’S FAILURE TO APPEAR; FATHER’S ATTORNEY EXPLAINED FATHER’S ABSENCE AND REQUESTED AN INQUEST; AN APPEAL FROM AN ORDER ENTERED UPON A PARTY’S DEFAULT BRINGS UP FOR REVIEW ONLY THE CONTESTED MATTERS BEFORE THE TRIAL COURT (SECOND 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

THE HOMEOWNERS’ ASSOCIATION ACTED WITHIN ITS AUTHORITY WHEN IT REQUIRED... THE REFEREE’S REPORT WAS BASED UPON INFORMATION IN BUSINESS RECORDS WHICH...