Opinion
March 8, 1991
Appeal from the Supreme Court, Erie County, Joslin, J.
Present — Doerr, J.P., Green, Pine, Lawton and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: This court's confirmation of defendants' determination that plaintiff Randy Burgwardt was guilty of employee misconduct (Matter of Burgwardt v Erie County Water Auth., 158 A.D.2d 998) collaterally estops plaintiffs from pursuing all causes of action set forth in their complaint, except for abuse of process (see, Board of Educ. v Farmingdale Classroom Teachers Assn., 38 N.Y.2d 397, 402). Plaintiffs' cause of action for alleged abuse of process must also be dismissed because the mere commencement of an action or proceeding cannot form the basis for that cause of action (see, Curiano v Suozzi, 63 N.Y.2d 113, 116; Aluminum Mill Supply Corp. v Larkin, 129 A.D.2d 542, lv denied 70 N.Y.2d 611; Rebore v Pace, 115 A.D.2d 468).