XII. Judicial

I. ABUSE OF PROCESS

Elements to prove:

  1. regularly issued process, either civil or criminal;
  2. intent to do harm without excuse or justification; and
  3. use of process in perverted manner to obtain collateral objective.

II. CAPIAS AD RESPONDENDUM

It is satisfied with personal service of summons or other form of notice and the person must have certain minimum contacts with the jurisdiction.

III. CONCEALMENT OR DESTRUCTION OF EVIDENCE (SPOLIATION OF EVIDENCE)

Elements to prove:

  1. the individual or entity to be sanctioned;
  2. was responsible for the loss or destruction;
  3. of evidence;
  4. crucial to the establishment of a claim or defense; and
  5. at a time when he, she or it was on notice that such evidence might be needed for future litigation.

IV. CONCERT OF ACTION

Elements to prove:

  1. joint and several liability;
  2. on the part of all defendants;
  3. having an understanding express or tacit;
  4. to participate in a common plan or design;
  5. to commit a tortious act;
  6. each defendant charged with acting in concert must have acted tortiously; and
  7. one of the defendants committed an act in pursuance of the agreement constituting a tort.

V. CONTEMPT

Elements to prove:

  1. in a petition or an order to show cause for non-party or motion for party;
  2. a notice indicating an accusation of contempt;
  3. a warning in eight point bold type;
  4. a statement indicating effects for failure to comply; and
  5. if contempt of subpoena, must show non-party has ability to produce documents.

VI. COURT SANCTIONS FOR DELAY

The courts of New York will determine when conduct is “frivolous” and may warrant sanctions.

VII. MALICIOUS ABUSE OF LEGAL PROCESS (MALICIOUS PROSECUTION)

Elements to prove:

  1. the defendants maliciously commenced and continued an action against a plaintiff;
  2. the proceeding was terminated in favor of the plaintiff or under circumstances such that innocence is indicated;
  3. probable cause for the proceeding was lacking; and
  4. the plaintiff’s person or property was interfered with by the issuance of a provisional remedy, such as an attachment or an arrest.

VIII. NOTARY PUBLIC OFFICER LIABLE FOR NEGLIGENT ACKNOWLEDGEMENT

Elements to prove:

  1. any misconduct;
  2. by a notary public;
  3. in the performance of any of his or her powers;
  4. to the parties injured; and
  5. for all damages sustained by them.

IX. ORDER TO SHOW CAUSE

Elements to prove:

  1. the caption of the case;
  2. the court where the motion is being made;
  3. the relief sought;
  4. the manner of service upon the adversary;
  5. supporting affidavit sworn to before a notary public (or an affirmation where permitted) made on the personal knowledge of the affiant, with any documentary evidence attached, explaining the factual reasons for the motion and relief sought, and that no previous application for the relief has been made, or states the results of any prior motions requesting similar relief and specifies any new facts not previously before the court; 
  6. Memorandum of Law containing the legal arguments in support of the motion with citations to supporting case law and/or statutes;
  7. if immediate emergency relief is sought (including expedited processing of the proposed OSC by the court), an emergency affidavit or affirmation should be submitted describing the nature of the relief and explaining why it is immediately necessary;
  8. if a new action, include (i) summons or notice of petition, (ii) complaint or petition, and (iii) fee to purchase an Index Number. If the case has not yet been before the court, a Request for Judicial Intervention (bring two copies and proof of purchase of the Index Number) with filing fee. In all events, the motion filing fee that is separate from the fee for an Index Number or Request for Judicial Intervention;
  9. if a TRO is sought, the movant should also demonstrate that the movant is likely to succeed on the merits of the action, the movant will suffer irreparable injury absent the issuance of a temporary restraining order, and the balance of the equities is in the movant’s favor.
  10. state a cause of action for a permanent injunction in the movant’s complaint or counterclaims or otherwise meet the requirements of CPLR § 6301;
  11. include a statement and/or annex documentary evidence to the affidavit or affirmation demonstrating that a good faith effort has been made to give reasonable notice (generally 24 hours) of the time, place, and manner of the application to the party against whom the relief is sought, or that the movant will be significantly prejudiced if such notice is given (not applicable to special proceedings brought under Article 7 of the RPAPL or Domestic Relations Law proceedings unless otherwise ordered by the court);
  12. include a statement of if any other provisional remedy has been sought or secured in the same action against the same party;
  13. the movant should be prepared to furnish an undertaking prior to the granting of a preliminary injunction;
  14. redact any confidential personal information;
  15. Commercial Division applications also limit page numbers to less than 25 pages, tabbed exhibits, a proposed order submission, and the Commercial Division addendum to the RJI; and
  16. all papers served or filed in an action or proceeding, including motion papers, must be signed and/or certified by an attorney.

the above is an abstract from the Encyclopedia of New York Causes of Action by Ernest Edward Badway, 2018 edition.