Summary
finding the institution of a medical malpractice claim did not unlawfully interfere with plaintiff's person or property
Summary of this case from O'Bradovich v. Village of TuckahoeOpinion
January 11, 1988
Appeal from the Supreme Court, Orange County (Ingrassia, J.).
Ordered that the appeal from the order is dismissed without costs or disbursements; and it is further,
Ordered that the judgment is affirmed, without costs or disbursements.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
The appellant's complaint was properly dismissed as squarely within the rule of Drago v Buonagurio ( 89 Misc.2d 171, revd 61 A.D.2d 282, revd 46 N.Y.2d 778, on remand 109 Misc.2d 192, affd 89 A.D.2d 682, lv denied 57 N.Y.2d 609). Briefly, the appellant, a dentist, performed root canal work on the respondent patient. The respondent patient refused to remit payment and the appellant threatened suit. Prior to commencement of this action, the respondent patient, by the respondent attorneys, instituted an action to recover damages for dental malpractice. That action was dismissed for failure to prosecute. Thereafter the appellant commenced the instant action seeking damages for malicious prosecution, abuse of process and prima facie tort. The appellant has no cognizable claim sounding in malicious prosecution as the mere service of a summons and complaint without further interference from some provisional remedy does not rise to the level of malicious prosecution (Molinoff v Sassower, 99 A.D.2d 528). Moreover, the appellant cannot establish that he received a favorable determination in the prior action as the dismissal was not on the merits (see, CPLR 3216 [a]). Further, the appellant can state no cause of action to recover damages for abuse of process as he was not subject to the wrongful use of a provisional remedy (Williams v Williams, 23 N.Y.2d 592, 596). The institution of a civil action by summons and complaint will not give rise to a claim to recover damages for abuse of process as they are not legally considered process capable of being abused (Curiano v Suozzi, 63 N.Y.2d 113). The appellant's claim sounding in prima facie tort is equally unavailing as it cannot be said that malevolence was the sole motivation for the respondents' otherwise lawful act, to wit, the commencement of an action to recover damages for dental malpractice (Burns Jackson Miller Summit Spitzer v Lindner, 59 N.Y.2d 314). The strong public policy of open access to the courts for all parties without fear of reprisal in the form of a retaliatory lawsuit mandates the dismissal of this action (see, Curiano v Suozzi, supra; Drago v Buonagurio, 46 N.Y.2d 778, supra). Additionally, the appellant is not entitled to an award of attorneys' fees pursuant to CPLR 8303-a as the prior malpractice action was commenced well before the effective date of that prospective legislative enactment (see, McKinney's Cons Laws of NY, Book 1, Statutes § 51 [b]). Mangano, J.P., Brown, Lawrence and Sullivan, JJ., concur.