FKB's Andrew Jones and Anna Rusanov obtain dismissal of an abuse of process action based on plaintiff's failure to state a cause of action for abuse of process. 10/1/09

FKB's client, the defendant attorney, was retained to represent a commercial tenant in two separate underlying non-payment proceedings. Both times, shortly after his retention, the defendant attorney moved to dismiss the underlying non-payment proceedings based on alleged deficiencies in the rent demands. While the underlying non-payment proceeding was still pending before the New York County Housing Court, the landlord filed an abuse of process action against the defendant attorney in New York County Supreme Court, arguing that the motion practice in the underlying non-payment proceedings constituted "abuse of process." Specifically, the landlord (now plaintiff) argued that the defendant attorney: (1) filed the motions after the expiration of time to answer the Non-Payment Petitions; (2) engaged in ex-parte communication with the Court; (3) failed to properly serve one of the motions to dismiss on the plaintiff; (4) filed the motions to dismiss "with malice" to frustrate the plaintiff and to pervert the legal process; and (5) moved to dismiss solely "for the purpose of harassing the plaintiff, and in an attempt to induce it either to forego its claims or compel it to accept an unreasonable settlement…"

In lieu of serving an Answer to the Complaint, FKB filed a pre-answer CPLR §3211(a)(7) motion to dismiss on the grounds that plaintiff's Complaint failed to state a colorable claim for relief against defendant attorney. FKB argued that plaintiff had not properly pled and could not establish the necessary elements of an "abuse of process" claim, namely, that: (1) process; (2) was used for an ulterior purpose or harm; (3) to obtain collateral advantage outside the legitimate ends of the process; and (4) that resulted in actual or special damages. We argued that, as a matter of law, the motions filed by FKB's client did not constitute "process" and thus an abuse of process could not lie in this matter. After hearing oral arguments, the Honorable Justice Lehner of the New York County Supreme Court granted FKB's motion to dismiss. Justice Lehner held that even if plaintiff's allegations were taken as true, they failed to set forth a viable claim for abuse of process.

FKB's Andrew Jones and Anna Rusanov represented the defendant attorney.

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