Opinion
July 27, 1987
Appeal from the Supreme Court, Kings County (Krausman, J.).
Ordered that the appeal by the defendants Olit Associates and Litwak is dismissed, for failure to perfect the same in accordance with the rules of this court (see, 22 NYCRR 670.20 [f]); and it is further,
Ordered that the order is reversed insofar as appealed from by Jaspan, on the law, and that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as it is asserted against it is granted, and the plaintiff's action against the remaining defendants is severed; and it is further,
Ordered that Jaspan is awarded one bill of costs payable by the plaintiff.
The genesis of the present action was three prior actions brought by Olit Associates for rents due under a lease. Default judgments were entered in all three actions, which the plaintiff herein moved to vacate. Special Term denied these motions, and this court subsequently affirmed the orders of Special Term (see, Olit Assocs. v. Brand Mfg. Corp., 114 A.D.2d 1022, lv dismissed 67 N.Y.2d 604; Olit Assocs. v. Brand Mfg. Corp., 92 A.D.2d 607).
A review of the record reveals that the plaintiff cannot maintain this action as against Jaspan, the firm of attorneys representing Olit Associates in the prior actions. With regard to the claim of malicious prosecution, the plaintiff failed to establish two of the essential elements of the cause of action, namely, (1) that the underlying proceedings terminated in its favor; and (2) that it suffered interference from some provisional remedy (see, Molinoff v. Sassower, 99 A.D.2d 528).
Similarly, the plaintiff's claim for abuse of process fails to allege or raise triable issues as to the necessary elements of the action. There is no indication in the record that Jaspan caused process to issue which compelled the performance or forbearance of some prescribed act (see, Hornstein v. Wolf, 109 A.D.2d 129, 133, affd 67 N.Y.2d 721). The mere service of a summons and complaint is insufficient to support a claim for abuse of process (see, Lewis v. Pay Tel., 124 A.D.2d 559). Also, the fact that the summonses and complaints were served on the Secretary of State when Jaspan knew the actual address of the plaintiff is insufficient to ground an action in abuse of process (see, Aluminum Mill Supply Corp. v. Larkin, 129 A.D.2d 542).
Since there are no triable issues of fact as to the missing essential elements of each cause of action, summary judgment should have been granted to Jaspan (see, Molinoff v. Sassower, supra). Lawrence, J.P., Kunzeman, Kooper and Spatt, JJ., concur.