Opinion
Submitted June 17, 1999
October 12, 1999
In an action to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Levitt, J.).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff's motion which were to dismiss the first and second counterclaims are granted, and those counterclaims are dismissed.
It is well settled that on a motion to dismiss a pleading for failure to state a cause of action pursuant to CPLR 3211(a)(7), the pleading is to be liberally construed, accepting all the facts alleged in the pleading to be true and according the allegation the benefit of every possibly favorable inference ( see, Leon v. Martinez, 84 N.Y.2d 83, 87).
Here, the first counterclaim fails to allege any facts to indicate that the sole motivation for the appellant's actions was disinterested malevolence, thus warranting dismissal of the respondents' counterclaim based on prima facie tort ( see, Curiano v. Suozzi, 63 N.Y.2d 113, 117; Burns Jackson Miller Summit Spitzer v. Lindner, 59 N.Y.2d 314, 333). Further, the second counterclaim alleging abuse of process should also have been dismissed as it fails to state the essential elements required for such a claim ( see, Curiano v. Suozzi, supra, at 116-117).
S. MILLER, J.P., SANTUCCI, SULLIVAN, and FLORIO, JJ., concur.