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East Coast Petroleum, Inc. v First Paradise Theaters Corp.
2012 NY Slip Op 50103(U) [34 Misc 3d 143(A)]
Decided on January 25, 2012
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 25, 2012
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
11-142.

East Coast Petroleum, Inc., Plaintiff-Appellant, The

against

First Paradise Theaters Corp., Christopher Thompson d/b/a Utopia Paradise Theater, Defendants-Respondents.


Plaintiff appeals, as limited by its briefs, from so much of an order of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), dated March 26, 2009, as denied its motion to vacate a "default" in answering defendant's counterclaim.


Per Curiam.

Order (Nelida Malave-Gonzalez, J.), dated March 26, 2009, insofar as appealed from, reversed, with $10 costs, plaintiff's vacatur motion granted and counterclaim dismissed.

Plaintiff should not have been cast in default for eschewing a reply to defendants' counterclaim alleging abuse of process, for the filing of such a reply was not required under the governing court act (see CCA 907[a]; Occhipinti v Kelly, 208 AD2d 817 [1994]). In this posture, and since the mere commencement of a civil action by summons and complaint does not constitute abuse of process (see Curiano v Suozzi, 63 NY2d 113, 116 [1984]), plaintiff's so-called default must be vacated and defendant's facially deficient counterclaim dismissed (see Loria v Plesser, 267 AD2d 213 [1999]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 25, 2012