Opinion
December 11, 1980
Appeal from an order of the Supreme Court at Special Term, entered November 13, 1979 in Schenectady County, which denied plaintiff's motion for leave to amend the complaint and which dismissed the complaint on defendant's cross motion pursuant to CPLR 3211 (subd [a], par 7). This appeal represents the third time this series of transactions has been before the court (see Iovinella v. Sheriff of Schenectady County, 67 A.D.2d 1037, app dsmd 47 N.Y.2d 799; General Elec. Credit Corp. v. Marcella's Appliances Sales Servs., 66 A.D.2d 927). Briefly, the facts involved have to do with an inventory financing agreement between this defendant and Marcella's Appliances Sales Services, Inc., (hereinafter Marcella) by which the defendant was granted a security interest in a part of Marcella's inventory. A default occurred and defendant demanded repossession of the pledged chattels from Marcella and was refused. On August 24, 1976 the defendant, by order to show cause, commenced a replevin action against Marcella which contained a temporary restraining provision prohibiting Marcella from disposing of the chattels, transferring them or removing them from New York State. On September 1, 1976 the defendant secured a seizure order authorizing the search of premises at 139 Gordon Road, the plaintiff's property, where it was believed that Marcella had concealed some of the pledged chattels. The order authorized the Sheriff to seize the chattels. The Sheriff and defendant's employees entered the plaintiff's premises and searched a barn located thereon in an effort to locate the chattels. The defendant's replevin action against Marcella was dismissed on November 3, 1976 for failure to state a cause of action in that the original replevin complaint failed to allege a demand for return of the chattels which were the subject of the action and, on reargument, the dismissal was upheld with leave to amend the complaint. An amended complaint was served and issue was joined in December, 1976. On April 29, 1977, Special Term found that the defendant was entitled to relief in the replevin action and ordered seizure of the chattels which were the subject of the action. On appeal, the order was modified to grant the defendant summary judgment (General Elec. Credit Corp. v. Marcella's Appliances Sales Servs., supra). Plaintiff is suing the defendant in the instant action for abuse of process, malicious prosecution, invasion of privacy, trespass and unreasonable search and seizure, all stemming from the execution of the seizure order. Plaintiff moved under CPLR 3025 to add an eighth cause of action based on a Federal statute (US Code, tit 42, § 1983), alleging unreasonable search and seizure and denial of due process and equal protection under the United States Constitution. The defendant, by cross motion, sought dismissal of the entire complaint under CPLR 3211 (subd [a], par 7). Special Term denied plaintiff's motion to amend and granted defendant's cross motion to dismiss the complaint. We concur with Special Term's conclusion that the plaintiff has failed to set out facts sufficient to sustain any of the causes of action pleaded. Abuse of process is not made out in the pleadings because there are no allegations of perversion of a regularly issued process to some collateral or improper purpose, a required element of abuse of process (Board of Educ. v. Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 N.Y.2d 397). The order of seizure was sought by the defendant for the purposes of locating the chattels which were the subject of the replevin action. Thus, the process was utilized for its intended purpose. Plaintiff's contention that the order of seizure could not be directed to one not a party in the replevin action is incorrect (CPLR 7102, subd [b]; 12 Carmody-Wait 2d, N Y Prac, p 657). Plaintiff's cause of action for malicious prosecution likewise is fatally deficient in that the defendant was successful in the replevin proceeding (General Elec. Credit Corp. v. Marcella's Appliances Sales Servs., supra). Malicious prosecution does not lie when the proceeding on which it is based turns out to be well founded (see 36 N.Y. Jur, Malicious Prosecution, § 19). Plaintiff's cause of action in trespass likewise must fail. We note that when the order of seizure was issued, Marcella had been served with a summons and complaint as required by CPLR 7102 (subd [a]). The subsequent dismissal of the complaint which was granted with leave to amend the complaint was a conditional dismissal and, therefore, did not nullify the order of seizure issued by the court as between these litigants. The seizure of chattels possessed by a third-party nondefendant, such as this plaintiff, could have been obtained prior to the service of any summons and complaint upon Marcella. Limited in rem jurisdiction would then have been obtained. The purpose of CPLR 7102 is to guarantee that when chattels are seized from a person, the proper defendant will be served with a summons and complaint; therefore, a summons and complaint must either accompany the order of seizure or be served beforehand. We conclude then that the technical deficiency in the first complaint did not nullify the efficacy of the order of seizure as to these litigants. Plaintiff further contends, in conjunction with his cause of action in trespass, that defendant's failure to allege that a demand for return of the chattels was made on plaintiff and that plaintiff refused to return the chattels renders the order of seizure jurisdictionally defective. A demand for return of goods is not always required. From the furtive circumstances attendant on the movement of the chattels from Marcella to plaintiff's property, we conclude that a demand was not required here. The examination before trial of the plaintiff reveals his knowledge of the "problems" with the chattels. A demand would have been futile under these circumstances. The sixth cause of action based on allegations of malice and want of probable cause is not supported by the facts. Probable cause was amply established in the affidavit submitted for the issuance of the order of seizure. Since no argument is propounded by plaintiff as to the fourth, fifth and seventh causes of action, we deem plaintiff to have abandoned any contention of their sufficiency or validity (Peluso v. Rochester Gen. Hosp., 64 A.D.2d 1013). The motion to amend the complaint to add an eighth cause of action was properly denied. It is a reiteration of the claims set out in the causes of action previously pleaded, all of which have been found to be insufficient. Order affirmed, with costs. Kane, J.P., Main, Mikoll, Casey and Herlihy, JJ., concur.