Order modified, on the law, by deleting so much thereof as dismissed defendant's first counterclaim, except that all references in the first counterclaim to attorney fees and transcript costs are stricken. As so modified, order affirmed insofar as appealed from, with $50 costs and disbursements to plaintiff.
Defendant is granted leave to serve an amended counterclaim in place of her dismissed second counterclaim; her time to serve such pleading is extended until 30 days after service upon her of a copy of the order to be made hereon, with notice of entry. By judgment entered December 14, 1976, Sara Jane Ginsberg, the defendant herein, was awarded a separation from her husband, the plaintiff Mark Ginsberg. The judgment awarded custody of their minor child to the mother. Since that judgment was entered, the husband has sought to modify his rights to visitation four times, with little success. On or about June 27, 1980, Mark Ginsberg commenced this action for divorce, seeking, inter alia, custody of the child. In her answer to plaintiff's complaint, defendant pleaded five counterclaims. The first is to recover damages for abuse of process. Defendant alleges that four proceedings previously brought by plaintiff were baseless. She also alleges that plaintiff compelled her attendance at "many weeks of hearings" (encompassing more than 60 days) on these prior matters through subpoena, causing her salary losses as well as other damages. She further alleges that plaintiff subpoenaed her in order to harass her and to exhaust her financial resources so that ultimately he could regain custody of the child. The second counterclaim incorporates the allegations of the first, and alleges the intentional infliction of economic harm or prima facie tort. Special Term correctly noted in its decision that an action for abuse of process may not be based on the mere institution of an action by service of a summons and complaint (Hoppenstein v Zemek, 62 A.D.2d 979). However, Special Term erred by ignoring defendant's allegations that plaintiff repeatedly and improperly used the subpoena power in those actions to harass defendant and exhaust her resources. Assuming the truth of these allegations, as we must on the motion to dismiss for failure to state a cause of action, defendant has set forth the essential elements for the tort of abuse of process (see Board of Educ. v Farmingdale Classroom Teachers Assn., 38 N.Y.2d 397, 403). She alleges that defendant used process, for the unjustified purpose of harassing her and exhausting her financial resources, in order to win a collateral advantage in the legal struggle over custody of the child. These