321 N.Y.S.2d 345, 269 N.E.2d 895 (1971) (citations omitted).
In this case, the plaintiffs have not suggested any "statutory authority" that entitles them to maintain this first cause of action. The plaintiffs meekly refer the court to New York Civil Practice Law and Rules Section 8303-a, but that provision simply authorizes a court to grant an award of attorney's fees in certain tort actions. Section 8303-a does not, however, create a right of action. In this respect, the plaintiffs here stand in a posture very much like that of the defendant in Raymond Corp. v. Coopers & Lybrand, 105 A.D.2d 926 ( App. Div. 3d Dept. 1984, 482 N.Y.S.2d 377 ). There, the defendant counterclaimed for fraud against the plaintiff, but the damages it sought were nothing more than the costs incurred by the defendant in defending against the plaintiff's suit. The court observed that "a necessary element to any cause of action for fraud and misrepresentation is damages, and such damages must be pleaded." Raymond Corp., 105 A.D.2d at 927, 482 N.Y.S.2d 377 (citations omitted). However, "damages attributable solely to the existence of litigation are clearly insufficient to sustain the necessary element of damages . . . ." Id. Hence, the plaintiffs here, like the defendant in Raymond Corp., have not adequately pleaded the damages element of their fraud claim. Indeed, on their fourth claim for relief, the plaintiffs have not pleaded damages at all. For this reason, they have failed to state a claim on which relief may be granted, and the court must dismiss the plaintiffs' first and fourth causes of action.
For a second cause of action, the plaintiffs allege abuse of process by the defendants:
Defendants have undertaken arbitration and court proceedings in bad faith, frivolous and harassing efforts against the plaintiffs to seek a recovery of the subject coins, as more particularly described hereinabove.
Defendants have caused various court or arbitration processes to issue against plaintiffs, all groundlessly, which processes have required the time, attention and resources of plaintiffs to respond to.
The foregoing constitutes an abuse of process by defendants, which abuse of process has resulted to damages to the plaintiffs in the approximate amount of $ 50,000.
Complaint PP20-22. Again, the plaintiffs have failed to state a claim on which relief may be granted. The tort of abuse of process has three elements: "(1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective." Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324 (1984) (citation omitted). However, the "process" so abused in the tort must involve "an unlawful interference with one's person or property." Williams v. Williams, 23 N.Y.2d 592, 596, 298 N.Y.S.2d 473, 246 N.E.2d 333 (1969). Such "interference" may be an arrest, an attachment, or a provisional remedy of similar nature; however, the initiation of civil proceedings is "not legally considered process capable of being abused." Curiano, 63 N.Y.2d at 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324. In this case, however, the plaintiffs have alleged no "unlawful interference" with their persons or property; indeed, the complaint is quite clear that the plaintiffs seek redress for the defendants having "undertaken" arbitration proceedings. But, under Curiano, this is legally insufficient to state a cause of action for abuse of process. For this reason, the second cause of action must be dismissed.
Finally, the third cause of action alleges that "the foregoing efforts and attempts by defendants constitute harassment and invasion of the privacy of the plaintiffs by defendants." Complaint P24. The plaintiffs seek $ 1,000,000.00 in punitive damages on this claim. However, it is clear that the first part of the third cause of action -- the claim of harassment -- is nothing more than a restatement of the abuse-of-process claim in the second cause of action. As such, it must be dismissed. The second part of the third cause of action -- the invasion of privacy claim -- is equally without merit. The cause of action for invasion of privacy is statutory under New York Law, and the plaintiffs have failed to make even a colorable claim under the applicable provisions. See New York Civil Rights Law Section 50 (use of image or name of person in advertising), Section 50-a (personnel records of certain public employees), and Section 50-b (victims of sex offenses). Indeed, the plaintiffs do not appear to contest in their opposition papers that the third cause of action should be dismissed in its entirety.
The court hereby dismisses the first and the fourth causes of action for failure to plead fraud with particularity; the court also dismisses all four causes of action for failure to state claims on which relief may be granted.
Dated: Brooklyn, New York
April 27th 1992
I. Leo Glasser, U.S. D. J.
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