1

15-0603 

Gilman v. Marsh & McLennan Cos.

1 UNITED STATES COURT OF APPEALS 

2 FOR THE SECOND CIRCUIT

3 

4 SUMMARY ORDER

5 

6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER 

7 FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

8 APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY 

9 ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 

10 OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY 

11 ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

12 

13 At a stated term of the United States Court of Appeals for 

14 the Second Circuit, held at the Thurgood Marshall United States 

15 Courthouse, 40 Foley Square, in the City of New York, on the 

16th 16 day of June, two thousand sixteen. 

17 

18 PRESENT: AMALYA L. KEARSE, 

19 RALPH K. WINTER, 

20 DENNIS JACOBS, 

21 Circuit Judges. 

22 

23 - - - - - - - - - - - - - - - - - - - - -X 

24 

25 WILLIAM W. GILMAN, EDWARD J. McNENNEY, JR., 

26 Plaintiffs-Appellants, 

27 

28 -v.- 15-0603 

29 

30 MARSH & McLENNAN COMPANIES, INC., MARSH 

31 INC., MARSH USA INC., MARSH GLOBAL 

32 BROKING INC., MICHAEL CHERKASKY, 

33 Defendants-Appellees. 

34 

35 - - - - - - - - - - - - - - - - - - - - -X 

36 

37 FOR APPELLANTS: DAVID I. GREENBERGER (Jeffrey L. 

38 Liddle, Blaine H. Bortnick, James 
2

1 W. Halter, on the brief), Liddle & 

2 Robinson, LLP, New York, NY. 

3 

4 FOR MARSH APPELLEES: JONATHAN D. POLKES (Gregory 

5 Silbert, Nicholas J. Pappas, on 

6 the brief), Weil, Gotshal & Manges 

7 LLP, New York, NY. 

8 

9 FOR CHERKASKY APPELLEE: JAMES O. HEYWORTH (Andrew W. 

10 Stern, on the brief), Sidley 

11 Austin LLP, New York, NY. 

12 

13 Appeal from a judgment of the United States District Court 

14 for the Southern District of New York (Oetken, J.). 

15 

16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND 

17 DECREED that the judgment of the district court be AFFIRMED. 

18 

19 William Gilman and Edward McNenney, Jr. appeal from the 

20 order of the United States District Court for the Southern 

21 District of New York (Oetken, J.) dismissing their claims for 

22 (i) abuse of process against their former employer, Marsh (i.e., 

23 Marsh & McLennan Cos., Marsh Inc., Marsh USA Inc., and Marsh 

24 Global Broking Inc.), and the CEO of their former employer, 

25 Michael Cherkasky, and (ii) misconduct against Cherkasky as an 

26 attorney. As explained in an opinion filed simultaneously with 

27 this summary order, we affirm the district court’s dismissal 

28 of Gilman and McNenney’s claims for employment benefits against 

29 their former employer. We assume the parties’ familiarity with 

30 the underlying facts, the procedural history, and the issues 

31 presented for review. 

32 We review the grant of a motion to dismiss de novo, accept 

33 as true all factual allegations, and draw all reasonable 

34 inferences in favor of the plaintiffs. Fink v. Time Warner 

35 Cable, 714 F.3d 739, 740-41 (2d Cir. 2013). 

36 1. Gilman and McNenney cannot make out a claim for abuse 

37 of process against Marsh and Cherkasky. As we recognized in 

38 Cook v. Sheldon, “[t]he gist of abuse of process is the improper 

39 use of process after it is regularly issued.” 41 F.3d 73, 80 

40 (2d Cir. 1994) (emphasis added) (internal marks omitted). To 
3

1 the extent Gilman and McNenney allege any “abuse,” it 

2 unquestionably came before the process in question (their 

3 respective indictments), not after. Accordingly, we affirm 

4 the district court’s dismissal of their abuse of process claim. 

5 2. Gilman and McNenney’s claim of misconduct by an 

6 attorney under New York Judiciary Law Section 487 also fails. 

7 Such a claim must allege that the attorney committed the 

8 misconduct while acting in the capacity as an attorney. See, 

9 e.g., Barrows v. Alexander, 912 N.Y.S.2d 831, 832 (App. Div. 

10 2010). To the extent Gilman and McNenney allege any misconduct 

11 by Cherkasky, it was without a doubt in his role as the CEO of 

12 Marsh, not as an attorney. Therefore, we affirm the district 

13 court’s dismissal of their misconduct by an attorney claim. 

14 Accordingly, and finding no merit in Gilman’s or McNenney’s 

15 other arguments, we hereby AFFIRM the judgment of the district 

16 court. 

17 FOR THE COURT: 

18 CATHERINE O’HAGAN WOLFE, CLERK