Beninati v. Nicotra

May 15, 1997
Versions:239 A.D.2d 242
657 N.Y.S.2d 414
1997 N.Y. App. Div. LEXIS 5200

Order, Supreme Court, New York County (Leland De-Grasse, J.), entered February 29, 1996, which granted defendant-respondent’s motion for summary judgment dismissing the complaint as against him as barred by res judicata and imposed sanctions against plaintiff, unanimously affirmed, with costs.

The complaint was properly dismissed on the ground that, styled as one for abuse of process, it adds nothing new of substance to plaintiff’s previous complaint that, styled as one for malicious prosecution, was dismissed for failure to state a cause of action (see, Schneider v David, 197 AD2d 363). "[I]t is well settled, under the transactional-analysis approach adopted by this State in deciding res judicata issues, that 'once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.’ ” (Supra.) We also agree with the IAS Court that service of this second complaint was frivolous and warrants imposition of sanctions (see, Papa v Burrows, 186 AD2d 375, lv denied 81 NY2d 707). We would add that dismissal is also warranted on the additional ground of the Statute of Limitations, which, for abuse of process, an intentional tort, is one year, not three years as the IAS Court held (see, Gallagher v Directors Guild, 144 AD2d 261, 262, lv denied 73 NY2d 708, citing Hansen v Petrone, 124 AD2d 782). Here, the allegedly abusive criminal proceeding was initiated by defendants in or about August 1992 and dismissed in or about April 1993; plaintiff did not commence the instant action until March 1995. Thus, the action is time-barred regardless of whether the one-year period is deemed to have begun upon the initiation of the criminal proceeding (cf., Cunningham v State of New York, 53 NY2d 851) or its termination. Concur—Sullivan, J. P., Milonas, Wallach and Mazzarelli, JJ.