Potential tort claims for consumers abused by litigation

As you know, a large part of my practice includes quashing and vacating judgments based on, among other things, a lack of sufficient proof that would qualify for a judgment under CPLR§3215(f). The following question sprung to mind: does the careless invocation of the court system in perpetrating faulty judgments serve as a basis for a claim of malicious prosecution or abuse of process under New York State law?"

The second circuit decided this issue in Pinsky v. Duncan, 79 F.3d 306 (2nd Cir. 1996) wherein the court stated, "wrongful attachment may give rise to a cause of action for malicious prosecution or abuse of process, but not without evidence of malice and lack of probable cause."

Lack of probable cause is a piece of cake. But "malice"(intent to do wrong) would be difficult to prove. The good news is that it can be inferred through conduct. Even so, proving this element seems too high of a burden without some good evidence of serious wrongdoing.

Keep gathering your evidence, my consumer-debtor friends!

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