183 A.D.2d 1003 | N.Y. App. Div. | 1992
Appeal from that part of an order of the Supreme Court (Mugglin, J.), entered June 12, 1991 in Delaware County, which (1) granted plaintiff New York State Properties, Inc. permission to come forward with evidentiary support for its eighth cause of action, and (2) denied defendant’s motion for summary judgment dismissing the complaint’s ninth cause of action and part of the tenth cause of action.
In April 1990, plaintiffs commenced this action against defendant alleging 10 causes of action and seeking monetary damages. Defendant answered and asserted a counterclaim for breach of contract. After a reply and bill of particulars were served, defendant moved for summary judgment, inter alia, as to the eighth and ninth causes of action for failure to state a cause of action and the tenth cause of action as being time barred. Plaintiffs opposed the motion and alternatively cross-moved for leave to amend their complaint, asserting that the eighth and ninth causes of action are claims for abuse of process and prima facie tort and that the tenth cause of action is a claim for malicious prosecution. Supreme Court denied defendant’s motion for summary judgment as to the ninth cause of action (finding that NYSP had stated a claim for prima facie tort) and the tenth cause of action (finding that plaintiff had stated a claim for malicious prosecution). Additionally, the court dismissed the abuse of process claim without prejudice to NYSP to come forth with evidentiary support. This appeal by defendant ensued.
Where process is manipulated to achieve some collateral advantage, a claim for abuse of process will be available to the
Defendant contends that Supreme Court erred in finding that the ninth cause of action states a claim by NYSP for prima facie tort. Unless malevolence has been established as the sole motive for defendant filing the mechanic’s liens, no claim for prima facie tort will lie (see, Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333). Defendant has averred factually that he filed the liens to protect his interest in work performed on various parcels of real property. NYSP has failed to allege facts evidencing that malevolence was the sole motive for defendant filing the liens (see, Patane v Griffin, 164 AD2d 192, 196, lv denied 77 NY2d 810; Sokol v Sofokles, 136 AD2d 535, 536). Defendant’s motion for summary judgment dismissing the ninth cause of action should, therefore, have been granted.
Finally, turning to the tenth cause of action, plaintiff contends that there are factual issues as to whether defendant had probable cause to bring criminal charges against him for issuing a bad check and that Supreme Court therefore properly refused to dismiss this cause of action. We disagree. The
Mercure, J. P., Mahoney, Casey and Harvey, JJ., concur. Ordered that the order is modified, on the law, with costs to defendant, by reversing so much thereof as denied defendant’s motion for summary judgment dismissing the ninth and tenth causes of action in the complaint and granted plaintiff New York State Properties, Inc. permission to come forward with evidentiary support of its eighth cause of action; defendants’ motion for summary judgment dismissing the ninth and tenth causes of action granted and said causes of action are dismissed; and, as so modified, affirmed.