From Casetext: Smarter Legal Research

Burgwardt v. Cook

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 8, 1991
171 A.D.2d 1039 (N.Y. App. Div. 1991)

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).


Summaries of

Burgwardt v. Cook

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 8, 1991
171 A.D.2d 1039 (N.Y. App. Div. 1991)
Case details for

Burgwardt v. Cook

Case Details

Full title:RANDY F. BURGWARDT et al., Appellants, v. PHILIP J. COOK et al.…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 8, 1991

Citations

171 A.D.2d 1039 (N.Y. App. Div. 1991)

Citing Cases

Abrazi v. Kotlyarsky

To the contrary, it fits squarely within the long line of decisions dating back to Curiano holding that the…