Goldstein Hall’s Construction Litigation Team, led by Construction Law and Litigation Partner Brian J. Markowitz and Associate Daniel Goldenberg, successfully argued a motion to dismiss Defendant’s counterclaim, which alleged  abuse of process and asserted a counterclaim for frivolous conduct along with various affirmative defenses.  The Action arises from a dispute in which Plaintiff alleges that the Defendants, the owners, contractors and design professionals of an adjacent property, underpinned Plaintiff’s property illegally and without permission, causing damage to Plaintiff’s property.

The counterclaiming Defendant, claimed that the act of naming them in the action is, in and of itself, an abuse of process which justifies damages in excess of $1,000,000.00.  The Defendant further alleged in a second counterclaim that naming it as a defendant in the lawsuit constituted frivolous conduct.  On behalf of our client, Goldstein Hall immediately moved to dismiss these counterclaims and the Court agreed, noting “there can be no abuse of process claim based only on the ground that this action will not succeed.”

As for the eight counterclaims, the Court ruled that affirmative defenses, alleged in a conclusory manner cannot be maintained and dismissed all but one of the defenses.

This decision was a key battle to be won because the ownership structure of the neighboring developer is intricate and Defendant’s use of the abuse of process counterclaim could only be seen as a means to shield certain parties from any liability – without reaching the merits of the action – by threatening our client with liability merely for asserting its rights.  Goldstein Hall saw through this litigation by attrition tactic and remained steadfast in its pursuit of redress for its injured client.

Goldstein Hall PLLC is a full service real estate law firm with a concentration in affordable housing and community development. Since our inception in 2006, we have been proud to continue to enhance our reputation as a smart, reputable, and responsive firm that believes our achievements are deeply rooted in the community and in your success.  Our Litigation Team expands upon our focus of servicing the real estate professional and regularly litigates in the areas of Commercial, Real Estate and Construction Law.

For more information regarding this matter, or our Litigation services, please contact Brian J. Markowitz or Daniel Goldenberg, or your Goldstein Hall Attorney.


This Client Alert was prepared as a service to clients and other friends of Goldstein Hall PLLC to report recent developments that may be of interest to them. The content is general and for informational purposes only, and should not be considered or relied on as legal advice. Prior results do not guarantee a similar outcome.