Summary
dismissing time-barred acts but permitting IIED claim based on actions occurring within statute of limitations where otherwise sufficient as a matter of law
Summary of this case from Neufeld v. NeufeldOpinion
February 19, 1985
Appeal from the Supreme Court, Kings County (Adler, J.).
Order modified, on the law, by granting that branch of plaintiff's motion which sought dismissal of the first counterclaim and granting that branch of the motion as sought dismissal of the fourth counterclaim to the extent that all allegations contained therein which arose prior to November 12, 1981 are stricken. As so modified, order affirmed, insofar as appealed from, without costs or disbursements.
In order to sufficiently plead the tort of abuse of process, three elements must be present: (1) regularly issued process compelling the performance or forbearance of some proscribed act, (2) intent to do harm by the issuance of such process without economic or social excuse or justification and (3) some collateral advantage or corresponding detriment to the other party which is outside the legitimate ends of the process ( Curiano v Suozzi, 63 N.Y.2d 113; Board of Educ. v Farmingdale Classroom Teachers Assn., 38 N.Y.2d 397, 403). It has frequently been held that the mere commencement of a civil action by service of a summons and complaint does not satisfy the requirement that there be regularly issued process compelling the performance or forbearance of a proscribed act ( James v Saltsman, 99 A.D.2d 797; Hansen v Rothschild, 83 A.D.2d 548; Krellman v Livingston, 64 A.D.2d 621, appeal dismissed 45 N.Y.2d 960). Therefore, defendant's first counterclaim should have been dismissed by Special Term ( see, Krellman v Livingston, supra). Moreover, defendant failed to adequately plead actual or special damages ( Board of Educ. v Farmingdale Classroom Teachers Assn., supra; Bohm v Holzberg, 47 A.D.2d 764).
As to defendant's fourth counterclaim for intentional infliction of emotional distress, although defendant properly pleaded a cause of action for that tort since the alleged conduct exceeded "`all bounds usually tolerated by decent society'" ( Fischer v Maloney, 43 N.Y.2d 553, 557, quoting from Prosser, Torts § 12, at 56 [4th ed]; Gurkin v Siegel, 122 Misc.2d 302), all allegations except for two arose more than one year before November 12, 1982, the date of filing of plaintiff's summons with the clerk of the court ( see, CPLR 203 [b] [5]; 215 [3]). However, since the two timely alleged occurrences involved, inter alia, an act of destruction to the windows of the house where defendant and the parties' children were staying, leaving them without protection from the severe cold, defendant may maintain her action based upon such conduct or any other which may have occurred within the year prior to November 12, 1982 ( see, Weisman v Weisman, 108 A.D.2d 853). Weinstein, J.P., Brown, Niehoff and Lawrence, JJ., concur.