STARTING A LAWSUIT IS NOT ABUSE OF PROCESS

Is this being zealous or over lawyering - an action is started and the answer includes a counterclaim is for abuse of process in an attempt to intimidate the plaintiff.

LEE LITIG. GROUP, PLLC v. A & B REST. GROUP, LLC, 2023 NY Slip Op 31116 - NY: Supreme Court 2023:

"Concerning the crossclaim for abuse of process, an "action for abuse of process lies in the improper use of process after it is issued." (Williams v. Williams, 23 NY2d 592 [1962] quoting Dean v. Kochendorfer, 237 NY 384 [1924]; Hauser v. Bartow, 273 NY 370 [1937]). "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 the process in a perverted manner to obtain a collateral objective" (Curiano V. Suozzi, 63 N.Y.2d 113 [1984]). "The mere commencement of a lawsuit cannot serve as the basis for a cause of action alleging abuse of process" (Geraci v. Gatsby Dining LLC, 2020 NY Slip Op 32148[U] [Sup Ct. Kings Cty 2020]; Lynn v. McCormick, 153 AD3d 688 [2d Dept 2017]). In this case, the counterclaim asserts that Lee's commencement of this litigation is abuse of process because plaintiff knew that the underlying action had already been settled. Defendant's claim that the continuation of the litigation is separate from the commencement of the action is unavailing. Defendants cannot bring an abuse of process claim based upon the commencement of an action, so this counterclaim must also be dismissed."