David v City of New York

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David v City of New York 2011 NY Slip Op 33116(U) November 30, 2011 Supreme Court, New York County Docket Number: 106604/11 Judge: Cynthia S. Kern Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY DRECENT- Index Number : 106604/201I DAVID, JOYCE vs CITY OF NEW YORK MOTION DATE Sequence Number : 001 MOTION SEQ. NO. DlSM ACTION/ INCONVENIENT FORUM The following papers, numbered 1 to li'I MOTION CAL. NO. were read on this motion tolfor PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affldavlta - Exhlblts Answering Affidavits - Exhlblta Replying Affidavits Cross-Motion: 17 Yes No Upon the foregoing papers, it is ordered that this motion Dated: ... [* 2] JOYCE DAVID, Tndcx No. 106604/I I 1 1a i nt i iL DE CISIC)N /OR 1) 1CR -against- FILED 1 1-[E CI I Y 0 : NEW YORK, SHARI 1 JYMAN and 1 L3ARBARA IIIFIORE, NEW YOHK COUN-rYCLERKS OFFICE Recitation, as required by W1,R 2219(a), of the papers considcrcd in the revicw of this motion lor :- l apcl-s . . Notice ol Motioii and Al fjdavits Annexed .................................... .Answering Aiiidavils ...................................................................... Cross-Motion and Alfidavits Anncxed ........................................... Answering Afliidavits to ( ross-Motion ........................................... .* Replying AifidaviIs., .................................................................... Ex hi bits ...................................................................................... Numberccl 1 2 3 4 Plaintiff commcnced tlie instant action against defendants the City ol Ncw York, Shari Hyman and Barbara DiFiorc for defamation, abuse of process, prima facie tort and bl-cadi of implied contracl to recovcr damages sleinining from defendants djsclosin-e af plaiiitifrs suspected inisconduct relating lo her legal representation of the rlamed dcfcndant i n 1he action of Pr~oplc11. U L I I - Liltlcjohn, Iiidictnient No. 1005/2006, Supreine Court, Kings County. I:~~ 13ekndants now iiiove pursuant to CPLR § 321 1 (a)(7) lo dismiss plaintil f s complaint 011 the ground that it fails to state a causc o r action for the above claims. For thc 1-casons set I ortll Ixluw, dcfendaiits motion is granted. I he relevant ktcts are as follows. At thc time ofthe evcnts in question, plaintiff was a [* 3] i ~ c i i i b e of the Secoiid .ludicid I)cp~t~ment s I mel, from which attoriicys are r~iuclomly r 1 &-I3 iissigiicd 10 reprcsent indigcnt defendants in crini inal trials. On October 25, 2006, plaintiff tiled a Notice o l Appcarancc to represcnt Darryl I ,ittlejolm, a criminal dekndant. Shoi-tlythereaitcr, plaintilf inforiiicd the presiding judgc, the I lonorable Cheryl C hambcrs, Ilia1 her representation 01 Mr. l,ittlejohn would bc pro bono. llcspite this slatemenl, oii A~igust1 8, 2008, plaintill. liled a rcqucst to be appoiiitccl as paid 18-B counscl with thc I lonorable Abraham (icrges, who was assigned to tlic case in the interjm. A k r the conviction of Mi-. Little.john at trial 011 311 coLiiits, plaintiff submilicd n rcqucst to Judge Gcrges lor enhanced liourly rates of $150.00 per hour as opposed lo the statutory figure of $75.00 lor paid 13-13 attorneys. .llrdge Gergcs initially grantcd pliiiiitift s rcquest but laler rescjiided this decisioii in 20 10 because plaintiff had originally agreed to do the case pro bono. After plaintiff suhmitted her final voucher with cnhanced rates in Aug~tst 2009, defeiidaiit Shari Hyman, Ileputy Criniirinl Justice Coordinator, wrotc a letter to the Gricvance Coininittee for the Supremc C ourt of the Slate of New York, Appellate Jlivisioii, Second .ludicial Depai-hiient oil October 27, 2009. Defendant Hyman referred plaintiff tu the Grievance Coriimittcc a h lcarning about plaintiffs communicalion with the court regarding her pro bono reprcsciitation of Mr. Littlejohn and subsequent rcquest to be appointed as paid 18-H counscl. In Novcmber. 2009, the Grievance Coinmiltee coriimenced an investigation o f p l a i n M . I liiiiitiff was inforincd by dcfciidaiit Hynian [hat hcr V O L I C ~ would not b c paid C~ ~ i i i t1i 11ic Grievance Comniittee inadc a determination in the invcstigation. Thc Gricvance Cornmiltee notified pIainlXf oil October 7 , 201 0 that her actions liad not been found to breach h e Rules ol Profes3ioiial C unduct. Thus, on December 22, 201 0, p1aintiKwas paid f or her work 011 the Littlcjolin case at the slatutory ratc, no1 at licr requestcd enhanced rate, lor an m o u n t totaling 2 - [* 4] $46,359.14 I laiiitiff allegcs that tlie delay in payment caused her to bc evictcd from licr offlicc space becairsc of her iii:ibiIity tn pay rent. On March 16, 2010, plaiiitiffallcges that she was tiihimccl by a rcpurtcr from tlic New York Daily Ncws that a City Hall employee - dcfendant Hyiiian - had providcd tlie Daily News with ini onnation regarding thc ethics pixhe ofplain(iff. On March 21, 2010, tlic Daily News rail a story rcvcnling that plaiiitifP was the subject of an investigation ovcr her 18-13 rcprcsenlatioii o1 Mr. I,ittlejoliii and that hcr voucl~er had been hcld up as a result o l said invcstigation. IJpoii information and belicf, plaintifi allcges that d e h d a n t s circulated the news story through the Office of Coui-t Adniinistralion s clipping service. Thus, p1aiiitif~ coniineiiccd the instant action against defendants for defamation, abuse of process, prima facie tort and breach o l implied contract. Slie seeks $3,045,225.00 in coinpensatory damages a i ~ d $10,000,000 00 in punitive damages. Delendants motion to dismiss plaintiffs dcfamation claim for hilure to stale a caitsc of action is granted. In ordcl- to statc a claim lor defiination, a plaintilf must plcad a hlsc statcmcnt, published without privilege or authorization to a third party, coiistituting fault as judged by, at a minimum, a ncgligciice standard, and it musl either cause spccial harm or constitutc d e h i a t i o n per sc. Dillon 1 . Ci/y ~ ~ N LY ww , 261 A.D.2d 34, 38 ( I Dcpt 1999). k Further, tlic particular words complained oP shall be set forth in the complaiiit. CPLR $30 16(a). In the iristarit action, plaintifrs d c h i a t i o n claim is disiiiissed for the lollowing rcxoiis. First, plaintiff iciils to state a cause oi action lor defamation as shc caiiimt show that the statements made about her arc falsc. Whcii ; statcriient i is true, it cannot bc dcl amatoiy. Scc Dillon, 261 A.D.2cl 34, 39. I heDaily NCWS story, with which plaiiitilTtakcs issue, stales that 3 [* 5] plaiiiliff was under invcstigation after siibiiiitiing an invoice for her dcfenst: of Mr. J.,itllejohii and thar thc investigation was due tn her requcst L be appointed as paid1 8-H cowisel d t c r she o originally agreed io rcpresent Mr. I,iltlc.john pro bono. As plainlift cannot claim tllal thc intormation published in the Ilaily News is hlsc, sincc it is fiilly consistent wilh thc ihcts allegcd in plaintifFs cuniplaint, 1icr claiiii Ibr defamation caiiiiot stand. Second,plaintilY s claim for defamation must be dismissed a s slic has ti01 siill-icieiitly allcgcd that dekiidant Hyiiian s lciter to thc Grievance Conimittcc coiistiluted dcfiiinntion. It is well-scrtled that a dcfamatioii action coiiceriiing libel cannot be maintained unless it is prcinised on publislicd asscrtions offact ns oiily assertions of fact can be proved false. SLY Uriu17 t . Richardson, 87 N.Y.2d 46 ( 1 995). Ms. Hyman s lctter merely contains a summary of plaintill s actions, which are undisputcd by both parlies and Ms. Hyman s opinion that pl@itifl- madc conflicting rcprescntations to the court which was cause tor conccrii and invcstigation by the Committec. Therefore, as plaintiff has not sufticieiitly alleged that any asscrtions of h c l in Ms. 1.lynian s letter wcre idsc, her dcfimation claim must be dismisscd. I i 113 1 I y , p 1a i 11ti U s dcfa 111 at i cm cl aim 111 u s t be d i sm i ssed agai 11s t dd cnd ant I3 a r bar a : DiFiore as plaintiff s complaint does not statc such a claim against Ms. DiI:iore. It is wcll-settlcd that with rcgard to the publicatioii of a defamatory articJc in ;1 ricwspapcr which is publicly circulated, Ihere is but lolie] publication, and that [is] at the placc where the newspaper is publishcd. See h c k v. Iiz/rr.rtate Pub. Gorp., 3 17 F.2d 727, 730-33 (2d Cir. 1 963). PIaintiK alleges that Ms. DiFiore sent the publishcd Daily News articlc to a clipping scrvicc whicli [hen forwardcd it to court porsonnel, 14owever, an indivjdual acl of circulating a piiblislicd articlc cannot qualify as the basis [or a defaiiialion claim. Thus, plaintift s delkiiiation claim inust be 4 [* 6] dismissed in its entirety. llcfcndants molion to dismiss plaintill s claim of prima facie tort for hihirc l o state ;I cause of actioii iiiusl also bc granted. To propcrly plead prima Cacic tort, a plaiiitiH must allegc Ihat tlic torll casor acted IiIalicioiisly, iiitlicted intentional 11arni by a Icgal action, and that plniiitifT suffered spccial damages. Scc C:, z/~in/7o ,Sz4ozzi, 63 N.Y.2d 11 3 (1984). The claiiii of Ip]rima 11, hcie tort is dcsigned to provide B remcdy lor intentional arid malicious actions that cause liai-111 and for which iio traditional tort provides a remedy. Id. I n the inslant casc, plaintifl s claim of prima facie tort must be dismissed as shc has f ailcd to properly plead such a claim. First, plaintill s claiiii of prima facie tort must bc clisinisscd as slic has fiiled to allegc iiialice or the intent to h a m OTI the part 01 tlic torlfeasor. In her cnniplaint, plaintill alleges only that Ms. Hyman submitted a fdsc report to the G-icvaiice Committee which caused plaintiff economic harm. However, the mere fact that tlic Grievance Coinmitlee ultiiiialely dccided that plajiiti1l had not committed ethical violations does lint makc Ms, I Iyiiian s report hlsc nor does il reveal a malicious motive or intcnt to harm 011 tlic par1 01 Ms. I lyiiiaii. Sccond, plaintill s claim of prima hcic tort must be dismissed as she has failed to allegc that she suii ered special damages. To dcmonstrate spccial damages, a plaintiffiiiust show specilk mid nieasurahle loss. Frtiiliqfir 17. JIeur,rt Cory., 65 N.Y.2d 135, 143 (1985). Plaintifl s coin plaint docs not put lorth any cstimatcs o l h c r losses; sllc merely clainis that she expended wins for her delerise. Finally, plaintiffs claim ol prima hcie tort must be disiiiisscd as plainti1f is incorrectly using prima facie tort as an alternative to her defamation claim. Plaiiiti W s cause ol action appears to be one for defamation and not lor prima h c j c tort. Priiiia flcic tort cannot he used as a catch-all alternativc for other causes of action. Thns, [* 7] "[wlliere ...complele i-elicLcan he accordcd under clas5ical 1oi-t concepts, prima facie tort may not be plcadcd s i d e hy side with the plcadiiig of ;i conventional k ~ l . "LS17ri~7(iyr I ' i k / ~ g Prc.cs, 90 I' A.D 2cl 315, 31 H ( 1 " Tkpl 1482). As coinplete rclielcan be accorded to plaintiff basccl on her claim that defaimatory staleinelits wcre rnadc about her, her pkiiia ~ C tort claim iiiust K lid. Ihus, plaintiRs claim ofpl-inia facie tort rnirst be dismisscd. Defendants' motion to dismiss plaintilf's claim olabuse of process for I'ailirrc to state ;i cause ol'action is also granted. In order to prevail on an abuse ol'proccss claim, ;I p1aiiitXliiiust establish thc followiiig elements: (1) a regularly issued proccss, either civil or criminal; (2) itltcnt to do hann without excusc or justilkation; a i d (3) use of the proccss in a pcrverkd iiianncr to obtain a collateral objective. See ('wiunn v. Suozzi, 63 N.Y.2d 113 (1984). Jii the instant action, plaintill's claim of abuse of process JJIUS~ be disiiiissed as she 1ix not sufticiently alleged the clemeiits of an abuse of process" claim. First, plaintilYs claiiii of abusc ol'proccss must be dismissed as plainlilrhas lailcd to allege intciit on tlic part of the defendants to do liarm without cxcusc or justilkation. In her complaint, plaintiff failed to allcge that Ms. Hyiiiaii's subinissivri of the lctler to the Grievance Cc?mmitlee was motivaled by a desil-c to do harm witliout exciise or juslilication. Second, plaintil'f s claim of abuse of process must bc disriiisscd as plaintiff'lias failed to allege [he use o f a process in a pcwerted 1nariiier to obtain a collateral ob+jectivc. Plaintiff alleges that defeiidants' reported her behavior to tlic Grievance their coiiccriis Committee. Ho wcver, dcfendants' reporting to the Grievance Coiniiii~tee regarding plaintiff's actions einbodics, rather than perverts, the gricvaiice pl-ocess. Clonscquciitly, as plaintiff has not a k g c d the elcmcnts of an abiisc o 'process claim, plaiiiliff s claim of abusc 01' l process iiiust be dismissed. [* 8] I:i 1ial 1y, d L fc t id ant s 111o t i o n t o cl i siii is s pl ai nt i C s c 1aim of breach o l iiii 17I i c d c o iit r;i c t Ibr i i ailur-cto state a cnusc of action is granted as well. To properly allegc breach ol iiiiplied coilhact. a plaiiitiff must spccily the essential terms 01 thc purported pcrsonal serviccs contract, iiicl ucling thosc specific provisions of the contract ~ipon which liability is predicated, whether thc 31lcged contract has been establishcd, plaintilf must allege the provisions that have been brcachcd. In the iiistant action, plaintiff s claiiii of breach ol~implied contract inusl be dismisscd ;IS plaiiitiff has not allegcd the essctitial terms or said contract tior has shc alleged the spcciiic provisions of said contract upon which liability is predicated. In lier complaint, plaintiff points oiily geiierally to the liules and Rcgulatioiis of the Assigned C ounscl Pla11 as the implied contract a1 issuc. Howcver, slic does riot allege any tcrms of said contract that were agreed upoii betwccii plaintii-Tand tlie City, such as whether they cver reached an understanding regarding the time of payincnt, the City s ability to delay payment pending irivestigation, or the aniount of payincnt wheii it is subsequently reduced by the courts. Eitrtlicrinore, even il plaiiitiFs rekrcnces to thc Assigned Cnuiisel Plan were coiisidcrcd adcquate allegations 01 tlie tcriiis of an implied contract, which they do not, plaintiff has failed to allege what tcrnis wcre breached by defendan~s, requirement [or plcadiiig the claim of breach of implied contract. l hus, plaintill s ;I claim of breach of implied contract must bc dismissed. Accordingly, defciidants motion to dismiss plaintirl s coinplaint is grantcd. l hc Clerk is directed to dismiss tht: complaint in its entirety. I his constitutes tlic decision :1nd order of tlic

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