Rubin v Lutfy

[*1] Rubin v Lutfy 2009 NY Slip Op 52553(U) [25 Misc 3d 1242(A)] Decided on November 23, 2009 Supreme Court, New York County Edmead, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 23, 2009
Supreme Court, New York County

Herbert S. Rubin, D.M.D., Plaintiff,

against

James Lutfy, ESQ., and CONNECTICUT INDEMNITY CO., and BRITAMCO UNDERWRITERS INC., Defendants.



110510/09

Carol R. Edmead, J.

In this malicious prosecution action, defendant James Lutfy, Esq. ("Lutfy") moves to dismiss the Complaint pursuant to CPLR §§3211(a)(1) and (7) on the grounds that the documentary evidence establishes a defense to the Complaint and the Complaint fails to state a cause of action.

Factual Background

This action arises out of an underlying dental malpractice action (the "malpractice action") which was commenced by Donna Rafaniello ("Rafaniello") against three of her treating dentists, Dr. Ira Granowitz ("Dr. Granowitz"), Dr. Trevor Gottfried ("Dr. Gottfried"), and Dr. Jeff Chustkie ("Dr. Chustkie"). Defendant Lutfy represented Dr. Gottfried in the malpractice action.

At trial in the malpractice action, two expert witnesses, Dr. Elliot Moskowitz ("Dr. Moskowitz") and Dr. Peter Rosenstein ("Dr. Rosenstein") testified concerning the subsequent dental treatments performed by plaintiff, Dr. Herbert S. Rubin, D.M.D. ("Dr. Rubin" or "plaintiff') and Dr. David L. Hoexter ("Dr. Hoexter"). The jury awarded Rafaniello $450,000.00 in damages, and held that Dr. Granowitz was 40% liable, that Dr. Gottfried was 45% liable, and that Dr. Chustkie was 15% liable.[FN1]

Thereafter, Dr. Gottfried, who was represented by Lutfy's law firm, commenced an action for contribution (the "contribution action") against plaintiff (Dr. Rubin) and Dr. Hoexter, as successive tortfeasors. The Complaint was later amended to name Connecticut and Britamco as plaintiffs/subrogees to the rights of Dr. Gottfried. Dr. Rubin's answer included a counterclaim that the suit was "meritless, vindicative [sic] and brought with malice." Lutfy's law firm, on behalf of its clients, set forth a general denial and asserted affirmative defenses for failure to state [*2]a cause of action that the counterclaim was frivolous. After discovery was completed, Dr. Rubin moved for summary judgment, arguing that the contribution action was meritless, malicious and vindictive. The Court (Abdus-Salaam, J.), denied Dr. Rubin's motion, holding that the prior testimony of Drs. Moskowitz and Rosenstein raised a triable issue of fact as to whether Dr. Rubin's treatment was necessary. The Court's decision was affirmed on appeal.

Dr. Rubin then commenced this action claiming that the contribution action by Lutfy and Dr. Gottfried's insurers Connecticut and Britamco constitutes malicious prosecution.

Defendant's Motion

Defendant argues that the documentary evidence submitted herewith demonstrates clearly that plaintiff cannot establish all of the elements required to recover on such a claim. Moreover, plaintiff's Complaint facially fails to plead all of the requisite elements of such a claim.

Defendant argues that plaintiff cannot recover for malicious prosecution because he cannot demonstrate that the contribution action against the plaintiff was commenced without probable cause and commenced with malice, was terminated in plaintiff's favor, and caused special injury.

The denial of Dr. Rubin's motion for summary judgment in the contribution action and the affirmation of that decision on appeal create a presumption that there was probable cause to bring that action. Further, the expert testimony in the underlying malpractice action and the decisions of the Supreme Court and the Appellate Division in the contribution action, denying plaintiff's motion for summary judgment, lend significant credence to and create a presumption that Lutfy had probable cause to bring the contribution action. As plaintiff's counsel was aware, the prior orders of the court in denying plaintiff's summary judgment motion, confirmed that the action filed by Lutfy had enough viability to go to a jury.

Further, an attorney's zealous advocacy on behalf of his client is not a sufficient basis for a finding of malice. Plaintiff's claim that Lutfy acted with malice in bringing the contribution action is unsubstantiated and conclusory, and thus, insufficient.

Moreover, where, as here, "defendants withdrew their prior civil action against the plaintiff as part of a settlement agreement . . . the action was not terminated in the plaintiffs favor." The contribution action was not discontinued without explanation. Rather, as plaintiff's counsel is aware, the contribution action was discontinued pursuant to a settlement with Dr. Hoexter, and such termination does not constitute a "favorable termination." The favorable termination element must be established by evidence that the court passed on the merits of the charge or claim under such circumstances as to show nonliability or evidence that the action was abandoned under circumstances which fairly imply the plaintiff's innocence. To the extent that the court made any determination on the merits of the action, on the motion for summary judgment, both the Supreme Court and the Appellate Division found that there was a potential basis for liability and declined to grant summary judgment in Dr. Rubin's favor. The Courts additionally failed to consider or address Dr. Rubin's argument that the action was frivolous, malicious, and vindictive. Moreover, the action's discontinuance did not take place under circumstances which fairly imply the plaintiff's innocence.

Finally, plaintiff failed to plead the element of special damages. Plaintiff's allegations regarding the time and money spent in the litigation and vague assertions of damage to reputation do not constitute special damages. [*3]

Plaintiff's Opposition

Prior to trial of the contribution action, Lutfy stated that he was discontinuing the action against Dr. Rubin, and gave no reasons. Once the insurance company entered into a $7,500 technical settlement with Dr. Hoexter, the case against Dr. Rubin disappeared. Lutfy's lack of probable cause is evidenced by his abandonment of the suit.

Also, the action against Dr. Rubin was not just dismissed; Lutfy without any explanation, obtained no money from Dr. Rubin or a release with prejudice, and abandoned the action against Dr. Rubin. The abandoned litigation was all in favor of Dr. Rubin.

Further, the Court found that the affidavits of Dr. Rubin, Dr. Hoexter and Ms. Rafaniello failed to prove "that Dr. Rubin's treatment of Ms. Rafaniello met the standard of care or was necessary" and the Appellate Division affirmed stating, "the motion for summary judgment was properly denied for failure to make a prima facie showing that appellant's capping and splinting of the patient's teeth was in accordance with good and accepted practice."

Dr. Moskowitz did not opine that Dr. Rubin's treatment was unnecessary, but "questioned" whether or not such an extensive procedure was necessary. Dr. Moskowitz's report stated that "the quality of the restorative treatment and periodontal response to the extensive treatment appears to be excellent."

Further, Dr. Rosenstein testified without seeing Rafaniello prior to the surgical treatment by Dr. Hoexter, that Dr. Hoexter performed unnecessary surgery and had a bad reputation for truth and veracity. The basis for the latter statement was later reduced to Dr. Rosenstein accusing Dr. Hoexter of stealing patients from Dr. Rosenstein's partner. Dr. Rosenstein clearly had a personal vendetta against Dr. Hoexter which served Lutfy well as he too has a personal vendetta against Dr. Hoexter. It became clear that defendant is using the court as his sword to punish and defame Dr. Rubin to slay Dr. Hoexter, when Lutfy told Dr. Rubin at his deposition that he has nothing against Dr. Rubin, "it is Dr. Hoexter that I am after." When Dr. Rubin became aware of Dr. Rosenstein statement, he reported Dr. Rosenstein to the New York State Dental Society, as it is an ethical violation to comment unfavorably about another dentist without evidence. A representative from the New York State Dental Society later told Dr. Rubin that Dr. Rosenstein stated that he did not mean to say that the treatment was unnecessary but was nervous under cross-examination. He claimed he has refused to give an affidavit in the summary judgment motion, which explains why Lutfy produced no affidavit from Dr. Rosenstein. Although the above is based on hearsay, it is significant as Lutfy cites Dr. Rosenstein's statement in support that there is probable cause for Lutfy's suit. Thus, it would be unjust for any court to certify whether there is probable cause.

If Lutfy produces an affidavit from Dr. Rosenstein that Dr. Rubin's treatment of Rafaniello was unnecessary then plaintiff concedes probable cause. Also, either party can depose Dr. Moskowitz and Dr. Rosenstein and if they testify that Dr. Rubin's treatment was unnecessary, plaintiff will not contest that there was probable cause. However, such testimony would be outside Dr. Moskowitz's field of expertise and he never reviewed the x-rays or examined the patient before Dr. Rubin treated.

Further, plaintiff has suffered special injuries. Plaintiff suffered financial injury amounting to thousands of dollars in defending his suit and in taking time out of his office for depositions. The injury is also to his reputation of having a perfect fifty year old record of never [*4]being sued for malpractice. Plaintiff carries no dental malpractice insurance, his statement to society that he would never do wrong. Not only can he never again state that he has never been sued for malpractice, if asked he must reveal for performing $20,000 of unnecessary treatment. The malpractice suit against Dr. Rubin for unnecessary treatment is a public record for eternity.

Defendant's Reply

Plaintiff failed to rebut defendant's prima facie entitlement to dismissal of plaintiff's malicious prosecution claims, but instead, seeks to re-litigate the underlying action. Defendant need not demonstrate that his underlying action was meritorious; rather, defendant can prevail by showing that he had mere probable cause to bring the action, which was shown.

Plaintiff's counsel's assertion that there was a lack of probable cause is insufficient, because the "want of probable cause must be patent." Even if the underlying action was disposed by the court on the merits in favor of a malicious prosecution plaintiff, that alone is insufficient to create an inference that there was no probable cause to bring the action. The judicial determinations in the underlying action did not resolve in Rubin's favor, as plaintiff concedes. That plaintiff believes that the Courts improperly interpreted this evidence is a question for an appeal, and is irrelevant. Plaintiff's counsel's attempt to improperly provide his "expert" opinions as an orthodontist under the guise of an attorney affirmation is improper and should be disregarded. Likewise, as plaintiff's counsel concedes plaintiff's purported evidence that the testimony of Drs. Moskowitz and Rosenstein in the Rafaniello case was a misstatement of those doctors' opinions is pure hearsay. These statements are unsubstantiated and should not be considered by this Court.

The Court's recognition of the potential merits of the action against Rubin creates

a strong presumption that there was probable cause to bring the underlying action. That Lutfy, upon settlement with Dr. Hoexter, determined not to proceed to trial in the action against Rubin, does not alter this presumption in any way.

Moreover, plaintiff has not identified any special damages that were incurred as a result of the underlying lawsuit. Plaintiff's claims do not constitute "concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit." The time, money, and psychological burdens that resulted from defending the underlying lawsuit simply do not constitute special damages. Plaintiff asserts that he has suffered reputational harm, yet he does not identify any financial consequence or loss of business as a result of such harm.

Discussion

Pursuant to CPLR 3211 (a)(l), a party may move for judgment dismissing one or more causes of action asserted against him on the ground that "a defense is founded upon documentary evidence." Thus, where the "documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law," dismissal is warranted (Leon v Martinez, 84 NY2d 83, 88, 614 NYS2d 972 [1994]). The test on a CPLR 3211 (a)(1) motion is whether the documentary evidence submitted "conclusively establishes a defense to the asserted claims as a matter of law" (Scott v Bell Atlantic Corp., 282 AD2d 180, 726 NYS2d 60 [1st Dept 2001] citing Leon v Martinez, 84 NY2d 83, 88, supra ; IMO Indus., Inc. v Anderson Kill & Olick, P.C., 267 AD2d 10, 11, 699 NYS2d 43 [1st Dept 1999]).

Where a written agreement unambiguously contradicts the allegations of a breach of contract cause of action, the contract itself constitutes documentary evidence warranting [*5]dismissal of the complaint, pursuant to CPLR 3211(a)(1), regardless of any extrinsic evidence or self-serving allegations offered by the plaintiff (Prichard v 164 Ludlow Corp., 14 Misc 3d 1202, 831 NYS2d 362 [Sup Ct New York County 2006] citing 150 Broadway NY Assoc., L.P. v Bodner, 14 AD3d 1 [1st Dept 2004]). (Baystone Equities, Inc. v Gerel Corp., 305 AD2d 260, 759 NYS2d 78 [1st Dept 2003]; Morgenthow & Latham v Bank of New York Co., 305 AD2d 74, 760 NYS2d 438 [1st Dept 2003] [Where documentary evidence relied upon by movant constitutes informal judicial admissions by plaintiffs' "attorney-in-fact" in another action, such judicial admissions by plaintiffs' agent in a pending Federal action constitute "documentary evidence" within the meaning of CPLR 3211(a)(1).

In determining a motion to dismiss pursuant to CPLR 3211(a)(7), the Court's role is ordinarily limited to determining whether the complaint states a cause of action (Frank v DaimlerChrysler Corp., 292 AD2d 118, 741 NYS2d 9 [1st Dept 2002]). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see, CPLR §3026), and the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory" (Nonnon v City of New York, 9 NY3d 825 [2007]; Leon v Martinez, 84 NY2d 83, 87-88, 614 NYS2d 972 [1994]). However, in those circumstances where the bare legal conclusions and factual allegations are "flatly contradicted by documentary evidence," they are not presumed to be true or accorded every favorable inference (Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81, 692 NYS2d 304 [1st Dept 1999], affd 94 NY2d 659, 709 NYS2d 861 [2000]; Kliebert v McKoan, 228 AD2d 232, 643 NYS2d 114 [1st Dept], lv denied 89 NY2d 802, 653 NYS2d 279 [1996]), and the criterion becomes "whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182 [1977]; see also Leon v Martinez, 84 NY2d 83, 88, 614 NYS2d 972 [1994]; Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285 AD2d 143, 150, 730 NYS2d 48 [1st Dept 2001]; WFB Telecom., Inc. v NYNEX Corp., 188 AD2d 257, 259, 590 NYS2d 460 [1st Dept], lv denied 81 NY2d 709, 599 NYS2d 804 [1993]). Thus, on a motion to dismiss pursuant to CPLR §3211(a)(7) where the parties have submitted evidentiary material, including affidavits, the pertinent issue is whether claimant has a cause of action, not whether one has been stated in the complaint (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; R.H. Sanbar Projects, Inc. v Gruzen Partnership, 148 AD2d 316, 538 NYS2d 532 [1st Dept 1989]). Affidavits submitted by a plaintiff may be considered for the limited purpose of remedying defects in the complaint (Rovello v Orofino Realty Co., 40 NY2d 633, 635-36 [1976]; Arrington v New York Times Co., 55 NY2d 433, 442 [1982]). While affidavits may be considered, if the motion is not converted to a 3212 motion for summary judgment, they are generally intended to remedy pleading defects and not to offer evidentiary support for properly pleaded claims" (Nonnon, supra ). It is the movant who has the burden to demonstrate that, based upon the four corners of the complaint liberally construed in favor of the plaintiff, the pleading states no legally cognizable cause of action (see Leon v Martinez, 84 NY2d at 87-88, 614 NYS2d 972 [1994]; Guggenheimer v Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182 [1977]; Salles v Chase Manhattan Bank, 300 AD2d 226, 228, 754 NYS2d 236 [1st Dept 2002]).

The tort of malicious prosecution provides protection from and provides redress for the [*6]initiation of unjustifiable litigation (Tray Wrap, Inc. v Pacific Tomato Growers Ltd., 18 Misc 3d 1122, 856 NYS2d 503 [Supreme Court Bronx County 2008] citing Broughton v State of New York, 37 AD2d 451 [1975]). In light of "the long standing belief that the court system is open to all without fear of reprisal by way of retaliatory lawsuits" a plaintiff asserting a cause of action for malicious prosecution must satisfy a heavy burden (Tray citing Smith-Hunter v Harvey, 95 NY2d 191 [2000]). The essence of a cause of action for malicious prosecution is the perversion of proper legal procedures (Tray citing Broughton). As such, a prior judicial proceeding is the sina qua non, or pre-requisite of said cause of action (Id.).

Thus, to state a claim for malicious prosecution, plaintiff must assert (1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, (4) malice and (5) special injuries (Stein v City of New York, 22 Misc 3d 1124, 880 NYS2d 876 [Sup Ct Bronx County 2009] citing Present v Avon Prods., Inc., 253 AD2d 183, 189 [1st Dept 1999]; Perryman v Village of Saranac Lake, 41 AD3d 1080, 839 NYS2d 290 [3d Dept 2007]). The failure to establish one of these elements results in the defeat of plaintiff's cause of action (Stein, supra citing Brown v Sears Roebuck & Co., 297 AD2d 205 [1st Dept 2002]).

The elements at issue, as raised by the defendant, are whether the contribution action lacked probable cause, was not terminated in favor of plaintiff, and whether it was not initiated with malice. The Court notes that plaintiff asserts that the "elements in dispute in the Rubin matter before this court are is the suit without probable cause and did it cause injury," and based on this statement, it would appear that plaintiff does not expressly contest defendant's claim that malice is insufficiently pleaded. Thus, since the failure to establish one of these elements results in the defeat of plaintiff's cause of action, plaintiff's action is defeated by his failure to allege sufficient facts indicating that the contribution claim was initiated by defendant with malice. However, to the extent plaintiff maintains that only probable cause and injury are at issue, the Court proceeds to address whether plaintiff's Complaint sufficient states or overcomes any documentary evidence establishing that probable cause was lacking and that he suffered special injuries as a result of the contribution action.

Lack of Probable Cause

"Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty" (Fink v Shawangunk Conservancy, Inc., 15 AD3d 754, 790 NYS2d 249 [3d Dept 2005] citing Colon v City of New York, 60 NY2d 78 [citations omitted]). "Because obviously less in the way of grounds for belief will be required to justify a reasonable [person] in bringing a civil rather than a criminal suit,' when the underlying action is civil in nature the want of probable cause must be patent" (Fink, supra citing Butler v Ratner, supra at 693, quoting Prosser and Keeton, Torts § 120, at 893 [5th ed.] [citations omitted]). A prior judicial recognition of potential merit of the underlying case creates a presumption that it did not lack probable cause (Fink at 755; Black v Green Harbour Homeowners' Ass'n, Inc., 37 AD3d 1013, 829 NYS2d 764 [3d Dept 2007] [stating that the courts' decisions partially denying summary judgment in the prior litigation, as well as Supreme Court's denial of the malicious prosecution plaintiffs' motion for a directed verdict during the trial, recognize the conflicting facts and issues in that litigation and the potential merit of at least some causes of action in the underlying complaint]). [*7]

Like the plaintiff in Black, the malicious prosecution plaintiff herein, Dr. Rubin, moved for dismissal of the contribution action, but failed to establish his freedom from liability. Since the malicious prosecution plaintiff Dr. Rubin likewise failed to establish his entitlement to summary dismissal of the contribution complaint, the presumption that defendant had probable cause to commence the contribution action arises, and plaintiff failed to rebut this presumption.

Although plaintiff claims that the contribution claim against him disappeared, and was abandoned by defendant, such factors do not overcome the presumption that there was probable cause to commence the contribution action, based on Dr. Rubin's alleged liability as a successive tortfeasor. Even where the prior action out of which the malicious prosecution arose was

dismissed, that fact alone is not sufficient to infer that defendants did not have probable cause

to commence the action (Web Mgmt. LLC v Sphere Drake Ins. Ltd., 302 AD2d 273, 754 NYS2d 636 [1st Dept 2003]).

Thus, the issues of fact created as to the interpretation of the testimony of Drs. Moskowitz and Rosenstein as to whether Dr. Rubin's treatment was necessary or wrong, does not overcome the presumption created by the Courts' findings that summary judgment dismissing of the contribution complaint was unwarranted. Notably, the Court (Abdul-Salam, J.) held that:

. . . Dr. Moskowitz also opined that splinting and capping Ms. Rafaniello's teeth was unnecessary. Thus, on the question of whether Dr. Rubin performed unnecessary work on Ms. Rafaniello's teeth - - - the question that Dr. Rubin concedes is the issue on this motion, - - Dr. Rubin has failed to make a prima facie showing of entitlement to summary judgment.

Even if he had made a prima facie showing, there is enough in the record from the underlying trial to raise an issue of fact about the necessity of Dr. Rubin's treatment. In addition to Dr. Moskowitz . . . Dr. Peter Rosenstein . . . testified on behalf of Dr. Gottfried . . . concluded that Dr. Rubin had no reason to splint Ms. Rafaniello's upper teeth and to place crowns on them. . . .

Dr. Rubin argues that the opinions of Dr. Moskowitz and Dr. Rosenstein are unworthy of consideration because these experts did not examine Ms. Rafaniello prior to her treatment by Dr. Rubin. This argument is unpersuasive, as experts often offer opinions that are based solely upon medical or dental records where the experts have never examined the patient. Nothing precludes the Court (or for that matter a jury) from considering the opinions of Drs. Moskowitz and Rosenstein. . . .

Again, this determination was affirmed by the Appellate Division.

Thus, the record in the malpractice action contained testimony that the Courts reviewed and upon which it was concluded a triable issue of fact existed as to whether Rubin complied with the applicable standards of care. That plaintiff disagrees with the Courts' interpretation is not relevant to the analysis as to whether there was probable cause to commence the contribution action against Dr. Rubin as a successive tortfeasor.

Therefore, documentary evidence, i.e., the Courts' previous decisions, establishes that defendant had probable cause to seek contribution from Dr. Rubin. [*8]

Not Terminated in Plaintiff's Favor

It has been stated that plaintiff's burden of proving that the proceeding terminated in favor of the accused is met when the "final disposition is such as to indicate . . . innocence" (Witcher v Children's Television Workshop, 187 AD2d 292, 589 NYS2d 454 [1st Dept 1992] citing Restatement, Torts 2d, § 660, Comment a; see Zebrowski v Bobinski, 278 NY 332, 333; Halberstadt v New York Life Ins. Co., 194 NY 1, 11). Thus, where a defendant withdrew its prior civil action against the plaintiff as part of a settlement agreement, it cannot be said that the prior action was terminated in the plaintiff's favor (Sipas v Vas, 50 AD3d (finding that defendants' CPLR 3211 (a)(7) motion to dismiss the cause of action alleging malicious prosecution was properly granted where "defendants withdrew their prior civil action against the plaintiff as part of a settlement agreement"]).

Here, the Complaint alleges that "without any explanation the attorney for Connecticut Indemnity Co. and Britamco Underwriters, Inc., James Lutfy, Esq. discontinued the law suit against Dr. Rubin." This allegation, in and of itself, is plainly insufficient to support a claim that the contribution claim was resolved in favor of plaintiff (see Buccieri v Franzreb, 201 AD2d 356, 607 NYS2d 330 [1st Dept 1994] ["plaintiff's allegation that the complaint was dismissed, without pleading that it was dismissed on the merits, is insufficient to withstand Fordham's motion to dismiss this cause of action"]).

Was Not Initiated With Malice

It is has been held that an inference of malice flowing solely from the lack of probable cause may not be drawn by the court on a motion for summary judgment and is an issue for a jury to decide (Ellman v McCarty, 70 AD2d 150, 420 NYS2d 237 [1979] citing Caminito v City of New York, 45 Misc 2d 241, 252, 256 NYS2d 670, 681, mod. on other grounds 25 AD2d 848, 269 NYS2d 826). However, plaintiff's unsubstantiated and conclusory allegations as to Lutfy's malice for malicious prosecution is insufficient (see Hornstein v Wolf, 109 AD2d 129, 491 NYS2d 183 [2d Dept 1985] ["While the complaint alleged, in a conclusory fashion, that defendants acted with malice, neither the pleadings nor the moving papers set forth the factual basis for such an allegation"]; Mondello v Mondello, 161 AD2d 690, 555 NYS2d 826 [2d Dept 1990] ["plaintiff's unsubstantiated and conclusory allegations of malice were insufficient to sustain his cause of action"]). Plaintiff alleges that the claims in the contribution action "were untrue and plead maliciously, willfully and wantonly with conscious disregard for the truth for vindictive retribution against" plaintiff for testifying truthfully and to intimidate him from future testifying in dental malpractice actions." Apart from this allegation, and plaintiff's assertion in opposition that Lutfy is using the court to punish and defame Dr. Rubin to slay Dr. Hoexter, there is no factual support indicating that defendant commenced the contribution action against Dr. Rubin, on behalf of his clients, with malice (Vail-Ballou Press Inc. v Tomasky, 266 AD2d 662, 698 NYS2d 98 [3d Dept 1999] ["defendant's allegations concerning malice and the lack of probable cause to be unsubstantiated and conclusory such that the claim should have been dismissed pursuant to CPLR 3211"]).

Special Damages

To allege special damages, defendant assert "some concrete harm that is considerably [*9]more cumbersome than the physical, psychological or financial demands of defending a lawsuit" (Engel v CBS, Inc., 93 NY2d 195, 689 NYS2d 411 [1999]; Kaye v Trump, 58 AD3d 579, 873 NYS2d 5 [1st Dept 2009]). Such a standard strikes the balance required between discouraging excess litigation on the one hand and prohibiting the malicious use of the courts on the other (Id.). In his Complaint, Dr. Rubin claims damages as follows: As a result of that . . . malicious law suit, Dr. Rubin was forced to spend thousands of dollars in defense and countless hours in response in the form of pleadings motions, appellate review and depositions. He further suffered irreparable harm to his fifty year reputation as a caring and conscientious dentist.

In opposition, plaintiff adds that his "perfect fifty year old record of never ever having a malpractice suit against him" has been taken from him by virtue of defendant's contribution claim. The costs in defending a lawsuit and conclusory claim of reputational harm, given plaintiff's 50-year perfect record is insufficient to assert a claim of special damages (see Engel, supra ["the loss of one client along with vague allegations of reputational loss, given plaintiff's "established practice," are not sufficient. Moreover, there has been no allegation that the consequences, in terms of lost business, have marred, in any specific and meaningful way, plaintiff's or his law firm's financial opportunities]).

Conclusion

Based on the foregoing, it is hereby

ORDERED that the motion by defendant James Lutfy, Esq. to dismiss the Complaint pursuant to CPLR §§3211(a)(1) and (7) on the grounds that the documentary evidence establishes a defense to the Complaint and the Complaint fails to state a cause of action, is granted, and the Complaint against said defendant is hereby dismissed in its entirety; and it is

further

ORDERED that said defendant serve a copy of this order with notice of entry upon all parties within 20 days of entry.

This constitutes the decision and order of the Court.

Dated: November 23, 2009________________________________

Hon. Carol Robinson Edmead, J.S.C. Footnotes

Footnote 1: Dr. Gottfried tendered his proportionate share of the judgment ($243,141.83) to Rafaniello. Defendants herein, Connecticut Indemnity Co. ("Connecticut") and Britamco Underwriters Inc. ("Britamco"), were partial indemnitees for Dr. Gottfried in satisfying the judgment.