Page 1
`
`Bessie Lader, Plaintiff, v. Isidor Benkowitz, Defendant
`
`[NO NUMBER IN ORIGINAL]
`
`Supreme Court of New York, Special Term, New York County
`
`188 Misc. 906; 66 N.Y.S.2d 713; 1946 N.Y. Misc. LEXIS 3123
`
`November 7, 1946
`
`PRIOR HISTORY:
`complaint for insufficiency.
`
`[***1] Motion to dismiss
`
`DISPOSITION: The motion to dismiss is denied, with
`leave to answer within ten days from the service of a
`copy of this order with notice of entry.
`
`to have her arrested under the warrant and paid the sum
`demanded of her does not affect or diminish her cause of
`action for abuse of process.
`
`COUNSEL: Max Benkowitz for defendant.
`
`Samuel J. Nachwalter for plaintiff.
`
`HEADNOTES
`
`Process -- abuse of process -- complaint charging
`defendant with having used warrant for arrest of
`plaintiff on disorderly conduct charge for purpose of
`exacting payment of unfounded claim for room rent at
`hotel, sufficient.
`
`A complaint which charges defendant with having
`used a warrant for the arrest of plaintiff on a charge of
`disorderly conduct as a lever or weapon for compelling
`plaintiff to pay an unfounded claim for rent of a room in
`defendant's hotel by threatening to have the warrant
`executed unless payment of such claim was made, states
`a good cause of action for abuse of process. The gist of
`the action for abuse of process lies in the improper use of
`process after it is issued. Defendant's use of the warrant
`for the purpose of obtaining payment of a civil claim for
`rent was
`a
`perversion
`of
`the
`process
`to
`the
`accomplishment of an improper purpose. Had plaintiff
`actually been arrested for the purpose of compelling her
`to pay the rent claim and then released upon payment
`thereof, [***2] a case of abuse of process would clearly
`be made out. That plaintiff yielded to defendant's threat
`
`JUDGES: McNally, J.
`
`OPINION BY: McNALLY
`
`OPINION
`
`[**713] This is a motion to dismiss the
`[*907]
`complaint
`for alleged insufficiency. The complaint
`alleges that while plaintiff was a guest at defendant's
`hotel the latter caused a warrant to be issued for her arrest
`on a charge of disorderly conduct;
`that defendant's
`purpose in causing the warrant
`to be issued was to
`compel plaintiff to pay defendant's claim for the rental of
`a room in his hotel, which claim was unwarranted and
`plaintiff had refused to pay; "that defendant wilfully used
`said warrant for a wrongful and unlawful purpose, and
`not for the purpose and object for which it was intended
`by law to effect, in that said defendant, by duress of
`execution thereof,
`intended to,
`and actually did,
`unlawfully and wrongfully compel said plaintiff to pay a
`sum of money upon his demand aforesaid, and by the
`[***3]
`unlawful use of
`said warrant defendant did
`wrongfully and unlawfully obtain from the plaintiff the
`sum of eighty [**714] ($ 80.00) dollars." (The words
`
`Biogen Exhibit 2006
`Coalition v. Biogen
`IPR2015-01136
`
`Page 1 of 2
`
`

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`188 Misc. 906, *907; 66 N.Y.S.2d 713, **714;
`1946 N.Y. Misc. LEXIS 3123, ***3
`
`Page 2
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`"by duress of execution thereof" were apparently
`intended to be synonymous with "by threats of execution
`thereof".) This
`interpretation is confirmed by the
`succeeding paragraph of the complaint, which alleges
`"that
`the defendant wilfully threatened to cause the
`aforesaid process to be executed by a public officer in
`uniform, a Constable, for its perverted object and purpose
`aforesaid, while the plaintiff was a guest in a Summer
`hotel, in the presence of others, then present".
`
`On a motion to dismiss for alleged insufficiency the
`plaintiff
`is entitled to have her pleading liberally
`construed with every intendment resolved in her favor.
`Thus construed, the complaint charges the defendant with
`having used a warrant for the arrest of plaintiff on a
`charge of disorderly conduct as a lever or weapon for
`compelling plaintiff to pay a collateral and unfounded
`claim, by threatening to have the warrant executed unless
`payment of such claim was made.
`
`In the court's opinion, a good cause of action for
`abuse of process is stated. Plaintiff concedes that the
`[***4] complaint does not state a cause of action for
`malicious prosecution and,
`indeed, disavows
`any
`intention to plead such a cause of action. She maintains
`that the pleading was intended to set forth a cause of
`action for abuse of process. "'The gist of the action for
`abuse of process lies in the improper use of process after
`it is issued. To show that regularly issued process was
`perverted [*908] to the accomplishment of an improper
`purpose is enough.'" ( Hauser v. Bartow, 273 N.Y. 370,
`373, 7 N.E.2d 268; see, also, Dean v. Kochendorfer, 237
`N.Y. 384, 390, 143 N.E. 229.) Defendant's use of the
`warrant for the arrest of plaintiff on a charge of disorderly
`conduct for the purpose of obtaining payment of a civil
`claim for rent was a perversion of the process to the
`accomplishment of an improper purpose. Had the
`plaintiff actually been arrested for
`the purpose of
`compelling her to pay the rent claim and then released
`upon payment thereof, a case of abuse of process would
`clearly be made out ( Foy v. Barry, 87 A.D. 291, 84
`
`N.Y.S. 335; see, also, Dishaw v. Wadleigh, 15 A.D. 205,
`44 N.Y.S. 207). The fact
`that plaintiff yielded to
`defendant's threat to have her [***5] arrested under the
`warrant and paid the sum demanded of her does not affect
`or diminish her cause of action for abuse of process (see
`majority opinion in Marlatte v. Weickgenant, 147 Mich.
`266, 80 A. L. R. 582, 110 N.W. 1061). The case of
`Bianchi v. Leon (138 A.D. 215, 122 N.Y.S. 1004), cited
`by defendant,
`is clearly distinguishable, for there the
`court found (pp. 223-224) no evidence that the arrest was
`to be made use of as a lever to procure a general
`settlement. On the contrary, the court found that Mrs.
`Bianchi had taken the initiative in offering to convey the
`realty in order to obtain her husband's release. The
`general language quoted by defendant from Silverman v.
`Ufa Eastern Division Distribution, Inc. (135 Misc. 814,
`236 N.Y.S. 18), must be read in the light of the fact that
`[**715] the wrong there complained of consisted merely
`of an offer to discontinue an action upon a foreign
`judgment
`in the event
`that
`the defendant performed
`certain acts. No threats to cause the arrest of
`the
`defendant under process issued for that purpose were
`involved in the cited case. The case was, at best, one of
`malicious prosecution of an action rather than one of
`abuse [***6] of process after
`its issuance. Similar
`observations are applicable to the case of Rubinstein v.
`Rubinstein (35 N.Y.S.2d 926), also relied upon by
`defendant.
`
`The case at bar comes within the language of Mr.
`Justice Cohn, writing for the Appellate Division of this
`department, in Miller v. Stern (262 A.D. 5, 8, 27 N.Y.S.2d
`374) to the effect that the tort of abuse of process is
`committed when "defendant uses or attempts to use the
`process of the court, not to effect its proper function, but
`to accomplish through it some collateral object."
`
`The motion to dismiss is denied, with leave to
`answer within ten days from the service of a copy of this
`order with notice of entry.
`
`Page 2 of 2