Opinion
January 25, 1990
Appeal from the Supreme Court, New York County (Harold Tompkins, J.).
In this action to recover legal fees, defendant sought leave to interpose a defense asserting lack of personal jurisdiction and counterclaims for legal malpractice and abuse of process. While, as Supreme Court recognized, leave to amend a pleading is freely granted as a matter of discretion in the absence of prejudice or surprise (Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18; Fahey v. County of Ontario, 44 N.Y.2d 934), leave may not be granted where the amended pleading plainly fails to state a cause of action and, thus, lacks merit (Crimmins Contr. Co. v City of New York, 74 N.Y.2d 166; Daniels v. Empire-Orr, Inc., 151 A.D.2d 370).
The jurisdictional defense was previously resolved against defendant in an order entered January 11, 1989, from which no appeal was taken. Therefore, the prior ruling is law of the case and may not be relitigated (Spertell v. Hendrix, 93 A.D.2d 788).
Defendant's counterclaim for abuse of process is founded entirely upon plaintiff's service of a summons and complaint, asserted to comprise a "baseless" action for legal fees and claimed to have caused defendant the expense of defending the action. As a matter of law, service of a summons and complaint, even if made with malicious intent, is insufficient to state a cause of action for abuse of process (Curiano v. Suozzi, 102 A.D.2d 759, affd 63 N.Y.2d 113; Family Media v. Printronic Corp., 140 A.D.2d 151). Nor does the allegation that suit was instituted to coerce a settlement constitute a sufficient basis for maintenance of the action (Perry v. Manocherian, 675 F. Supp. 1417 [S.D.N.Y. 1987]). Finally, abuse of process requires "the deliberate premeditated infliction of economic injury without economic or social excuse or justification" (Board of Educ. v. Farmingdale Classroom Teachers Assn., 38 N.Y.2d 397, 405) and, therefore, the expense arising from the defense of a lawsuit is an insufficient injury to sustain the cause of action.
Equally without merit is defendant's counterclaim for legal malpractice. Notably absent is the requisite allegation that she would have prevailed in the underlying action but for her attorneys' malpractice (Parker Chapin Flattau Klimpl v. Daelen Corp., 59 A.D.2d 375). Counsel's decision to proceed before the courts rather than in arbitration at worst amounts to an error in professional judgment which does not rise to the level of malpractice (see, Rosner v. Paley, 65 N.Y.2d 736; Pacesetter Communications Corp. v. Solin Breindel, 150 A.D.2d 232).
Concur — Ellerin, J.P., Wallach, Smith and Rubin, JJ.