Legal Memorandum: False Government Filings in NY

Issue: Is there a cause of action for filing false governmental reports under New York law?

New York does recognize an action for abuse of process.  “Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of process in a perverted manner to obtain a collateral objective.”  Ettienne v. Hochman, 83 A.D.3d 888, 888, 920 N.Y.S.2d 717, 717 (2d Dep’t 2011).

The case of Posner v. Lewis, 80 A.D.3d 308, 912 N.Y.S.2d 53 (1st Dep’t 2010), lends support to the argument that false government filings give rise to a civil action against the person who abused the system by the person against whom the false reports were made.  In Posner, the court, in reaching its conclusion that the plaintiff had undisputedly stated a cause of action for tortious interference with prospective contract rights and for prima facie tort, reasoned that one of the defendant’s reports to the school district was not motivated by a genuine public policy concern but by malice and an intent to injure the plaintiff.  The Posner court cited Brandt v. Winchell, 3 N.Y.2d 628, 170 N.Y.S.2d 828, 148 N.E.2d 160 (1958), in which the court of appeals set forth a balancing test for determining whether an otherwise lawful act of bringing charges against a plaintiff before public officials becomes unlawful, thereby supporting a claim by the plaintiff for prima facie tort.  “[W]henever the gist of an alleged cause of action … is that an otherwise lawful act […]