64 A.D.2d 621 | N.Y. App. Div. | 1978
—In an action, inter alia, to recover damages for assault and battery and invasion of privacy, Louis N. Porter appeals from an order of the Supreme Court, Nassau County, dated May 4, 1977, which, upon granting reargument to the defendant Laitman, Mathews, Magidson & Rosen (1) reversed a prior determination which had granted the motions of Porter and plaintiffs to strike the counterclaims set forth in the answer in the prime action, and (2) denied the motions. Order reversed, on the law, with $50 costs and disbursements to appellant payable by defendant-respondent, motions granted, and the counterclaims of the defendant-respondent law firm are dismissed. The defendant-respondent, a law firm, has interposed two counterclaims: one alleging abuse of process and the second alleging a conspiracy to commit that tort. Since the sufficiency of the second counterclaim depends upon the sufficiency of the first, the simple issue on this appeal is whether the law firm has properly stated a counterclaim sounding in abuse of process. The thrust of the counterclaim is that the action for assault and battery was commenced solely to harass the law firm and to compel it to cease representing a particular client who was engaged in separate litigation involving the plaintiff Robert M. Krellman. Without more, this is insufficient to support a claim for abuse of process. This court has recently held that "the mere institution of a civil action by summons and complaint is not legally considered such process as is capable of being abused (see Williams v Williams [23 NY2d 592]; Drago v Buonagurio [61
