CHAPTER 10 - 10-3 ABUSE OF PROCESS

• Jurisdiction: United States

10-3 Abuse of Process

A claim for abuse of process is similar to a claim for vexatious litigation. "The distinction between . . . [a] vexatious suit and abuse of process as tort actions is that in the former the wrongful act is the commencement of an action without legal justification, and in the latter it is in the subsequent proceedings, not in the issue of process but in its abuse."⁶³ The elements of a cause of action for abuse of process are that "the defendant used a legal process against another in an improper manner or to accomplish a purpose for which it was not designed."⁶⁴

"The gravamen of the action for abuse of process is the use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . the addition of 'primarily' is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant."⁶⁵

In Silano v. Cooney,⁶⁶ the plaintiff claims that the defendant made a false complaint to the police that the plaintiff had made false allegations which threatened defendant's business with another company. The defendant moved to strike the count asserting abuse of process on the basis that it fails to allege wrongful conduct as part of an ongoing legal proceeding. The court stated that "[a]buse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing or misapplying process justified in itself for an end other than that which it is designed to accomplish."⁶⁷ There was nothing in the count that alleged that after...