Burgwardt v. Cook

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 AD2d 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 NY2d 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 NY2d 113, 116; Aluminum Mill Supply Corp. v Larkin, 129 AD2d 542, Iv denied 70 NY2d 611; Rebore v Pace, 115 AD2d 468). (Appeal from Order of Supreme Court, Erie County, Joslin, J. — Dismiss Complaint.) Present — Doerr, J. P., Green, Pine, Lawton and Davis, JJ.