Tepler v Cohen

[*1] Tepler v Cohen 2009 NY Slip Op 50012(U) [22 Misc 3d 127(A)] Decided on January 7, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 7, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, J.
570926/07

Marcia Tepler, Plaintiff-Appellant,

against

Marvin Cohen, Atria Communities, Inc., Cambridge Development LLC, Defendants-Respondents.

Plaintiff appeals from an order of the Small Claims Part of the Civil Court of the City of New York, New York County (Geoffrey D. Wright, J.), dated May 15, 2007, which granted defendants' motion to dismiss the action.

Per Curiam.

Order (Geoffrey D. Wright, J.), dated May 15, 2007, affirmed, without costs.

Plaintiff's claims for malicious prosecution and abuse of process were properly dismissed since the underlying nuisance holdover proceeding, settled by so-ordered stipulation, did not terminate favorably to plaintiff (see Colon v City of New York, 60 NY2d 78 [1983]), and "the institution of an action is not process capable of being abused" (Roberts v 112 Duane Assoc. LLC, 32 AD3d 366, 368 [2006], lv denied 8 NY3d 815 [2007]). Thus, the dismissal of this small claims action achieved "substantial justice" consistent with substantive law principles (CCA 1807).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 07, 2009