OSINOFF v. MUCHNICK


53 A.D.2d 858 (1976)

Gerald K. Osinoff et al., Appellants, v. Saul Muchnick et al., Defendants, and Myron A. Kanter et al., Doing Business as Kanter, Blodnick & Haber, Respondents

Appellate Division of the Supreme Court of the State of New York, Second Department.

July 6, 1976


Order affirmed, with $50 costs and disbursements.

Plaintiffs allege that the complaint (drawn by appellants Kanter, Blodnick and Haber) in a previous action (commenced by defendants Muchnick) constituted an abuse of process. That previous action related solely to a disagreement between the parties, yet the complaint contained arguably irrelevant allegations of fraud against the State of New York. Plaintiffs claim that those allegations "were included therein for the sole purpose of compelling these plaintiffs, through fear and duress, to comply with unreasonable and unfounded demands made by the defendants". The Court of Appeals recently reviewed the requirements for an abuse of process action: (1) regularly issued process; (2) intent to harm; and (3) use of the process in a perverted manner to obtain a collateral objective (Board of Educ. v Farmingdale Classroom Teachers Assn., 38 N.Y.2d 397, 403-404). Here, although the complaint in the prior action was regularly issued and the allegations of fraud indicate an intention to harm plaintiffs by exposure to investigation, the third requirement is not met. "The gist of the action for abuse of process lies in the improper use of process after it is issued" (Dean v Kochendorfer, 237 N.Y. 384, 390). While plaintiffs here claim that appellants had a collateral objective (coercing compliance with unreasonable demands), the process itself was not susceptible to improper use. Any improper use could be avoided by a simple motion to strike the allegations of fraud. Scandalous allegations in a complaint cannot in themselves give rise to an action for abuse of process (Cardy v Maxwell, 9 Misc.2d 329).


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