Personal Injury- Abuse of Process and Malicious Prosecution

Personal injury cases can be complicated, emotional, and stressful for the victims involved. In some cases, these cases involve not only physical and emotional harm but also legal wrongdoing, such as abuse of process and malicious prosecution. Understanding these terms and their legal implications can be crucial for victims seeking justice and compensation for their injuries.

Many legal claims are considered when you are either improperly prosecuted or falsely accused of a crime. Abuse of process and malicious prosecution are similar on the surface, but are essentially different in personal injury lawsuit. If someone does not have a reasonable basis to file a lawsuit against you or maybe he/she subpoenas you, seeks a retaining order and continuously files motions, it is called an abuse of process. Often, an abuse of process occurs when the defendant uses the legitimate judicial process for unintended reasons. On the other hand, if the defendant maliciously uses a civil proceeding or prosecutes a criminal case against you when the defendant knows that he/she has no case, it amounts to malicious prosecution.

Personal Injury Abuse of Process and Malicious ProsecutionElements of Abuse of Process

With this tort, you have to prove the following elements for a successful claim:

  • The defendant used the process by filing a counterclaim, summon requests, appeal, motion for sanction and change of location
  • The defendant had an ulterior motive
  • The defendant misused the process

Showing facts and circumstances normally show whether there was an ulterior motive or not. The court will look at your intent and that of the defendant, whether any of you is attempting to gain business, economic and legal advantage. A misuse of process generally exists if the defendant uses the process in an intentional way and knew it would be misused or used the process in a way not contemplated, intended, or authorized by law. In fact, the best way to think about the abuse of the process is about improper purpose. It is important to note that abuse of process claims are not easy to prove and most of them are often unsuccessful.

Elements of Malicious Prosecution

To establish a malicious prosecution, you must prove that the defendant:

  • Want to initiate or continuing a criminal proceeding
  • There was no probable cause to believe the allegations of the proceeding
  • Termination of the prior criminal proceeding
  • Suffered injuries and got damages as a result of the criminal prosecution

A criminal proceeding in any process ranges from parking tickets to murder. If the defendant bringing a civil or criminal proceeding thinks that he/she has a winning case against you, and discovers a reason that they cannot win the case, but continue the case for improper motives, the defendant may be guilty of malicious prosecution.


Besides, the original lawsuit or prosecution must have probable cause: that a reasonable person in his/her mind believe the legal action was legitimate and had a clear chance of winning. However, if the defendant knew that the action is illegitimate, there is no need of proving probable cause. Remember, if the defendant can prove that probable cause of action, then you will not win. For instance, if the defendant was doing what his/her personal injury attorney recommended, and mistakenly believe the lawsuit was legitimate; the defendant will not be liable for malicious prosecution.

Finally, if you have successfully defended against the malicious prosecution suit, and won the previous illegitimate lawsuit. In short, if you had to pay damages for a civil lawsuit or convicted of criminal charges, you cannot sue for malicious prosecution based on that civil or criminal allegation.

Contact an Experienced Personal Injury Attorney

Normally, abuse of process and malicious prosecution case are very complex. So, if you have suffered from abuse of process or malicious prosecution in Staten Island, please consult with a skilled personal injury lawyer to help protect your legal rights.

Call Sgarlato & Sgarlato PLLC. today to schedule your free consultation.

Sgarlato & Sgarlato PLLC Personal Injury Lawyers helps injured residents of the Staten Island area recover full compensation for the damages and losses they suffer due to the negligence of others.
The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
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