Cain v Segall

[*1] Cain v Segall 2006 NY Slip Op 50785(U) [11 Misc 3d 1090(A)] Decided on May 2, 2006 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 2, 2006
Supreme Court, Kings County

Inez Cain, Plaintiff,

against

Sidney M. Segall, Defendant.



13017/00

Arthur M. Schack, J.

Pro se defendant Sidney M. Segall, an attorney, moves, pursuant to 22 NYCRR

§ 130-1.1, for a hearing to award him reimbursement for actual expenses incurred, reasonable attorney's fees and sanctions for frivolous conduct by plaintiff Inez Cain and her attorney. Plaintiff Cain sued defendant Segall for battery, alleging that defendant struck her on April 14, 1999 at the law office in which both were then employed. She was working as defendant's secretary.

I presided at the jury trial of the instant action on May 26, 2005. Defendant [*2]moved, at the conclusion of plaintiff's case-in-chief, pursuant to CLPR Rule 4401, for a judgment as a matter of law that plaintiff failed to make a prima facie battery case against defendant. I granted that motion [trial transcript - p. 96] and dismissed the complaint. I then called the jury into the courtroom, and stated to them [trial transcript - p. 97, lines 7 - 24]:

Ladies and gentlemen of the jury, while you were out of the room,

the defendant made a motion to dismiss this case, on the grounds that

the plaintiff had failed to make out what is known as a prima facie case

or an action, as a matter of law, that a bodily contact occurred.

To proof that, you have to make out a battery occurred, it was

intended, and that the defendant made that without the plaintiff's consent.

The Court is ruling, as a matter of law, even if there was contact

and it was intended, the plaintiff failed to present any evidence that the

defendant failed to have this contact without the plaintiff's consent.

So, therefore, as a matter of law, I am deciding that the plaintiff

was unable to make out a battery complaint. That is the only element of

the case. Therefore, I am dismissing the case.

Defendant, subsequent to his success in prevailing at trial, made the instant motion. During the oral argument on this motion, Ms. Cain's attorney referred to Mr. Segall as a "sore winner." While the Court can understand Mr. Segall's distress with plaintiff's lawsuit against him, this Court, for the reasons to follow, must deny Mr. Segall's motion.

Discussion

In Miller v Stern, 262 AD 5, 7 (1st Dept. 1941), the Court instructed that, "[p]ublic

policy requires that parties be permitted to avail themselves of the courts to settle their grievances and that they may do so without unnecessary exposure to a suit for damages in the event of an unsuccessful prosecution." See Scully v Genesee Milk Producer's Co-op. Inc., 78 AD2d 982 (4th Dept 1980); Krellman v Livingston, 64 AD2d 621 (2d Dept 1978). Ms. Cain had a right to her day in Court. While she was unable to prevail in her battery action, she should not be subject to costs and sanctions as a substitute for a lawsuit against her "for damages in the event of an unsuccessful prosecution." See Miller, supra.

This motion appears to be Mr. Segall's attempt, as a "sore winner," to pursue a retaliatory action, without commencing a plenary action for either malicious prosecution or abuse of process. In Curiano v Suozzi, 63 NY2d 113, 118 (1984), the Court instructed that "malicious prosecution" is the "malicious institution of judicial proceedings without probable cause for doing so which finally ends in failure." If Ms. Cain maliciously prosecuted a battery action against him, Mr. Segall could pursue an action against her. However, in viewing the evidence in the instant action, it appears that it would be difficult for Mr. Segall to prevail in a malicious prosecution action because there was physical contact between the parties, which could be considered "probable cause" for Ms. [*3]Cain's lawsuit.

Also, in Miller v Stern, supra, the Court observed, at 6-7, that "[i]t has repeatedly been held that the mere institution of a civil action which has occasioned a party trouble, inconvenience and expense of defending, will not support an action for abuse of process." The Court, in Board of Ed. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assoc., Inc., Local 1889, AFT, AFL-CIO, 38 NY2d 397, 404 (1975), held that "[w]here process is manipulated to achieve some collateral advantage, whether it be denominated extortion, blackmail or retribution, the tort of abuse of process will be available to the injured party." I held, as a matter of law, that Ms. Cain's battery claim against Mr. Segall could not be proven. If Mr. Segall believes that Ms. Cain sought "retribution" against him, he may pursue an appropriate action.

While Ms. Cain failed to make a prima facie case for battery, the physical contact between the parties on April 14, 1999 made Ms. Cain's prosecution of the instant lawsuit neither frivolous nor sanctionable. If anything, Mr. Segall's instant motion appears to be an attempt by a "sore winner" to secure something of value from Ms. Cain and her attorney.

Conclusion

Accordingly, it is

ORDERED, that defendant's motion, pursuant to 22 NYCRR § 130-1.1, for a hearing to award defendant reimbursement for actual expenses incurred, reasonable attorney's fees and sanctions for frivolous conduct by plaintiff Cain and her attorney is denied.

This constitutes the Decision and Order of the Court.

E N T E R

_________________________________

HON. ARTHUR M. SCHACK

J. S. C.

[*4]