A Comparative Analysis between the Torts of “Abuse of Process” and “Malicious Prosecution” in civil litigation
Misuse of the legal system and its processes by litigants is nothing new; for centuries, individuals have improperly used the threat and/or commencement of legal action, both criminal and civil, as a sword against an adversary or potential victim. In fact, the use of process for the purpose of oppression or injustice was once punishable as contempt, and at times rose to an action for injury to reputation.[1]
This is not as problematic under English law, where the losing plaintiff in a suit is required to pay the winning defendant’s attorney’s fees (and is therefore less likely to bring a frivolous suit). However, in American jurisprudence, where litigants are each generally responsible for bearing the cost of their own attorneys, the courts have struggled to find the balance between the “public policy requir[ing] that all persons should freely resort to the courts for redresss of wrongs” and the law that “protects them when they act in good faith and upon reasonable grounds.”[2]
Thus, the desire to “effectuate the strong public policy of open access to the courts for all parties and to avoid ad infinitum litigation with each party claiming that the opponent’s previous action was malicious and meritless,” led to the development of the torts of abuse of process and malicious prosecution as effective remedies against such improper misuse of the legal system.[3]
Abuse of process (i.e., causing process to issue lawfully for an improper or unjustified purpose) is often confused with malicious prosecution (i.e., maliciously causing process to issue without justification), but the two torts are separate and distinct causes of action, based upon varying principles of law and policy.
Notwithstanding their differences, however, both are grounded in an improper purpose in the use of the legal process;[4] both were “spawned from the action for trespass on the case in the nature of conspiracy”[5]; and both require pleading and proving, inter alia, the essential element of malice.[6]
Moreover, because malice is an essential element of both causes of action, to establish a prima facie case, the complaint and/or supporting papers must contain heightened pleadings, setting forth the factual basis for the allegations; conclusory unsubstantiated assertions will not suffice, leaving the claim ripe for dismissal under CPLR §§3211 or 3212.[7]
Similarly, the mere bringing of a civil action alleging malicious prosecution, even if groundless, ill motivated, and damaging to the defendant, will not provide sufficient basis for such an action unless the person or property of plaintiff was interfered with by some incidental remedy such as attachment, arrest, or injunction[8](also known as “special damages”); and correspondingly, the mere institution of an action for abuse of process by summons and complaint is not legally considered process capable of being abused, and therefore does not rise to a claim for abuse of process.[9]
Abuse of Process
The tort of abuse of process is, in essence, “the misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process.”[10] Thus, the gist of the action lies in the improper use of process after it is properly issued,[11] described by some as a “form of extortion.”[12]
Abuse of process has three essential elements:
(1) Regularly issued process (either civil or criminal) compelling the performance or forbearance of some prescribed act;
(2) The person activating the process must have a motivation and intent to do harm without economic or social excuse or justification; and
(3) The person activating the process must be seeking some collateral objective, advantage or corresponding detriment to plaintiff which is outside the legitimate ends of process. [13]
It is critical to note that the process used must involve “an unlawful interference with one’s person or property,” to be actionable in a civil court. [14] The Court of Appeals has held that the mere institution of a civil action by summons and complaint is not legally considered process capable of being abused, even if the plaintiff acted maliciously in bringing the action, as malicious motive alone does not give rise to a cause of action for abuse of process.[15]
Malicious Prosecution
The tort of malicious prosecution is “founded upon the perversion of proper legal procedures.”[16] Like the tort of abuse of process, malicious prosecution has its origins in the writ of conspiracy, from which it emerged as a separate and distinct concept, fully recognized as a legitimate redress under common law where a party had contrived to injure someone by pretense and color of legal process, which resulted in loss of reputation, anxiety and expenditure of funds in defense.[17]
The essential elements of malicious prosecution in a civil action are as follows:
(1) The commencement and prosecution of a judicial proceeding against the plaintiff;
(2) By or at the insistence of the defendant;
(3) Without probable cause;
(4) With malice;
(5) Which terminated in the favor of the plaintiff in the malicious prosecution action;
(6) To his injury; and
(7) The plaintiff suffered interference with some provisional remedy, and some interference with plaintiff’s person or property by way of it.
In a civil proceeding, probable cause is defined as the knowledge of facts, actual or apparent, strong enough to justify a reasonable person in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of.[18]
However, lack of probable cause does not mean lack of any cause, but the lack of any reasonable cause such as would persuade a person of ordinary care and prudence to believe in the truth of the charge. A party can, of course, still act with probable cause even though mistaken.[19]
Maliciousness for purposes of this cause of action is defined as the intentional perpetuation of a wrongful act injuring plaintiff without justification.[20] In other words, to succeed in a malicious prosecution action, the plaintiff must prove, inter alia:
(a) no just cause or purpose in seeking adjudication of a claim (malice); and
(b) an entire lack of reasonable belief in the ability to succeed in the prior proceeding (probable cause).[21]
For many years a plaintiff alleging malicious prosecution in a civil action was required to plead and prove “special damages” as an essential element (loosely defined in this instance as an interference with a person or their property).[22]
However, the Court of Appeals, expressly recognizing its departure from existing case law, recently relaxed the special damages requirement, holding that:
Burdens substantially equivalent to those imposed by provisional remedies are enough. Actual imposition of a provisional remedy need not occur, and a highly substantial and identifiable interference with person, property, or business will suffice. Since the role that the special injury requirement fulfills is that of a buffer to insure against retaliatory malicious prosecution claims and unending litigation, we are satisfied that a verifiable burden substantially equivalent to the provisional remedy effect can amount to special injury. Put another way, what is “special” about special injury is that the defendant must abide some concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit. This standard strikes the balance required between discouraging excess litigation on the one hand and prohibiting the malicious use of the courts on the other.[23]
As the courts have long held, when a party abuses the legal process, his tortious conduct not only injures the intended target, but also offends the spirit of the legal procedure itself.
[1] Board of Education of Farmingdale Union Free School District v. Farminfdale Classroom Teachers Association, Inc., Local 1889, AFT-CIO, 38 N.Y.2d 397, 402, 380 N.Y.S.2d 635 (1975), citing, (8 Halsbury’s Laws of England, 3d ed., pp. 16-17).
[2] Engel v. CBS. Inc., 93 N.Y.2d 195, 201, 689 N.Y.S.2d 411 (1999), citing, Burt v. Smith, 181 N.Y. 1 (1905).
[3] Engel v. CBS. Inc., supra (internal cites omitted); Board of Education of Farmingdale Union Free School District, v. Farmingdale Classroom Teachers Association, Inc., Local 1889, AFT-CIO, 38 N.Y.2d 397, 402, 380 N.Y.S.2d 635 (1975).
[4] Segreto v. Petrelli Associates, Inc., 285 A.D.2d 499, 728 N.Y.S.2d 488 (2d Dept. 2001), leave to appeal denied, –N.Y.2d– (Nov. 15, 2001); “Process” is a direction or demand that the person to whom it is directed shall perform or refrain from doing some described act. Williams v. Williams, 23 N.Y.2d 592, 298 N.Y.S.2d 473 (1969).
[5] Board of Education of Farmingdale Union Free School District, v. Farmingdale Classroom Teachers Association, Inc., Local 1889, AFT-CIO, supra, at 400.
[6] Howell v, Davis, 58 A.D.2d 852, 396 N.Y.S.2d 866, (2d Dept. 1977), aff’d, 43 N.Y.2d 874, 403 N.Y.S. 496 (1978).
[7] Hornstein v. Wolf, 109 A.D.2d 129, 491 N.Y.S.2d 183 (2d Dept. 1985), aff’d, 67 N.Y.2d 721, 499 N.Y.S.2d 938 (1986); Berliner v. Burton, –A.D.–, 724 N.Y.S.2d 627 (2d Dept. 2001); Varanelli v. County of Suffolk, 130 A.D.2d 653, 515 N.Y.S.2d 584 (2d Dept. 1987).
[8] Williams v. Williams, supra, at 596.
[9] Leon v. Couri, 285 A.D.2d 493, 727 N.Y.S.2d 639 (2d Dept. 2001).
[10] Board of Education of Farmingdale Union Free School District, v. Farmingdale Classroom Teachers Association, Inc., Local 1889, AFT-CIO, supra, at 400.
[11] Williams v. Williams, supra, at 604.
[12] Id. at 596, quoting, Dean Prosser, (Prosser, Torts, 3d ed., pp. 877-878).
[13] Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466, 468 (1984).
[14] Id. at 116.
[15] Id. at 116.
[16] Molinoff v. Sassower, 99 A.D.2d 528, 471 N.Y.S.2d 312 (2d Dept. 1984).
[17] Board of Education of Farmingdale Union Free School District, v. Farmingdale Classroom Teachers Association, Inc., Local 1889, AFT-CIO, supra, at 401, citing, Savile v. Roberts, (1 Ld.Raym. 374 (10 Will. III, BR)).
[18] Burt v. Smith, 181 N.Y. 1 (1905).
[19] Colon v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453 (1983).
[20] Metropolitan Life Insurance Company v. Noble Lowndes International, Inc., 84 N.Y.2d 430, 618 N.Y.S.2d 882 (1994).
[21] Engel v. CBS, Inc., supra, at 206.
[22] Curiano v. Suozzi, supra, at 118.
[23] Engel v. CBS. Inc., supra at 205 (internal cites omitted); citing, Groat v. Town Board of Glennville, 73A.D.2d 426, 426 N.Y.S.2d 339 (1980), appeal dismissed, 50 N.Y.2d 928, 1980 WL 131228; and Rooney v. Tyson, 91 N.Y.2d 685, 693-694, 674 N.Y.S.2d 616 (1998).
