Commercial Division Blog

Posted: February 14, 2020 / Categories Commercial, Sanctions

Abuse of Process Claim Cannot be Based on Initiation of a Lawsuit

On January 31, 2020, Justice Cohen of the New York County Commercial Division issued a decision in O'Keeffe's Inc. v. 400 Times Sq. Assoc., LLC, 2020 NY Slip Op. 30208(U), holding that an abuse of process claim could not be based on filing a lawsuit, explaining:

Plaintiff seeks dismissal of Defendants' counterclaim for abuse of process. In its broadest sense, abuse of process may be defined as misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process. Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective. Generally, the mere commencement of an action alone is not sufficient to state a claim.

Here, Plaintiff commenced an action claiming entitlement to monies owed for its provision of fire-rated glass and framing products in connection with construction activities at 400 W. 42nd Street, New York, New York. Plaintiff alleges that it provided the materials at the behest of and for the benefit of Defendants but was not paid. Defendants' counterclaim is that Plaintiff was paid, and Defendants nevertheless are being made to defend a lawsuit they believe to be meritless. As noted above, even assuming Defendants' allegations about the Complaint's lack of merit are true, Defendants have not stated a viable claim for abuse of process.

. . .

The law provides ample recourse in the event a Defendant can show that a Plaintiff's claims for relief are frivolous, including a motion for sanctions (when appropriate) if and when the case is dismissed. Advancing a tort claim for abuse of process is not one of them.

(Internal citations omitted) (emphasis added).

Part of being a good litigator is thinking of winning arguments other lawyers miss. However, courts have little patience for lawyers who cross the line from creative to making frivolous arguments. Contact Schlam Stone & Dolan partner John Lundin at if you or a client has a question regarding whether an argument has crossed the line from creative to sanctionable.