Harrington v Atia

[*1] Harrington v Atia 2015 NY Slip Op 51054(U) Decided on July 7, 2015 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2013-2625 K C

Donald Harrington, Respondent, July 7, 2015

against

Ahmed Atia Also Known as ADAM, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), dated October 21, 2013. The order denied defendant's motion to dismiss the complaint.

ORDERED that the order is modified by providing that the branches of defendant's motion seeking to dismiss the second cause of action, for intentional infliction of emotional distress, the third cause of action, for defamation, and the fourth cause of action, for abuse of process, are granted; as so modified, the order is affirmed, without costs.

Plaintiff seeks in this action to recover the principal sum of $25,000 on each of four causes of action: the first, for malicious prosecution; the second, for intentional infliction of emotional distress; the third, for defamation; and the fourth, for abuse of process. Following the commencement of the action, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7). The Civil Court denied the motion.

"Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY3d 83, 88 [1994]; see e.g. ACA Fin. Guar. Corp. v Goldman, Sachs & Co., ___NY3d ___, 2015 NY Slip Op 03876, *3 [2015]; AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 590-591 [2005]). On a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading is to be afforded a liberal construction (see CPLR 3026). The facts are accepted as alleged in the complaint, the plaintiff is afforded every possible favorable inference, and the court determines only whether the facts as alleged fit within any cognizable legal theory (Leon v Martinez, 84 NY2d at 87-88; see e.g. Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314, 326 [2002]). In his first cause of action, for malicious prosecution, plaintiff alleged that, on June 12, 2012, a criminal proceeding had been commenced against him as a result of a complaint defendant had made to the police; that, on June 13, 2012, he had been arrested as a result of defendant's complaint; that defendant had known that the incident complained of had not occurred and thus that the criminal proceeding had lacked probable cause; that the criminal proceeding had been terminated in favor of plaintiff after the office of the Kings County District Attorney had received evidence that [*2]proved plaintiff's innocence; and that defendant had acted "willfully, maliciously, recklessly, and wantonly with intent to injure plaintiff" in making his complaint to the police. Plaintiff thus pleaded all the elements of a cause of action for malicious prosecution (see e.g. Bellissimo v Mitchell, 122 AD3d 560, 561 [2014]; Spinner v County of Nassau, 103 AD3d 875, 876-877 [2013]). The single document defendant submitted in support of his motion to dismiss, an order of protection that had issued against plaintiff in November 2012, six months after the events complained of in the first cause of action, had no bearing on the facts alleged in this cause of action. To the extent that the criminal proceeding against plaintiff was dismissed without a determination on the merits, we note that a dismissal can qualify as a favorable termination for purposes of a malicious prosecution action, so long as the dismissal is not inconsistent with the innocence of the accused (see Cantalino v Danner, 96 NY2d 391, 396 [2001]). Since the complaint properly stated a cause of action for malicious prosecution, which defendant failed to refute with documentary evidence (see CPLR 3211 [a] [1]), we conclude that the Civil Court properly denied the branch of defendant's motion seeking to dismiss this cause of action.

Plaintiff's second cause of action, for the intentional infliction of emotional distress, differed from his other causes of action only in the nature of the damage allegedly suffered. Since the cause of action was otherwise duplicative of plaintiff's other causes of action, the branch of defendant's motion seeking to dismiss this cause of action should have been granted (see e.g. Perez v Violence Intervention Program, 116 AD3d 601 [2014]; Rodgers v City of New York, 106 AD3d 1068, 1070 [2013]; Fleischer v NYP Holdings, Inc., 104 AD3d 536 [2013]).

In his third cause of action, plaintiff alleged that defendant had characterized him "to members of the community" as a "junkie" and a "thief," without setting forth the specific time, place and manner in which these statements had been made. As the complaint failed to comply with the specificity requirements for pleading a cause of action for defamation (see Buxbaum v Castro, 104 AD3d 895 [2013]; Buffalino v Long Is. Sav. Bank, 126 AD2d 508, 510 [1987]; Geddes v Princess Props. Intl., 88 AD2d 835 [1982]), we conclude that the Civil Court erred in denying the branch of defendant's motion seeking dismissal of this cause of action.

Plaintiff's fourth cause of action was for abuse of process. "The essential elements of a cause of action sounding in abuse of process are: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective' " (Korsinsky v Rose, 120 AD3d 1307, 1310 [2014], quoting Curiano v Suozzi, 63 NY2d 113, 116 [1984]; see also Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397, 404 [1975]). "[T]here must be an unlawful interference with one's person or property under color of process" to support a cause of action for abuse of process (Williams v Williams, 23 NY2d 592, 596 [1969]). Facts suggestive of the defendant's improper purpose or collateral objective must also be pleaded (see Schilt v Matherson, 104 AD3d 668, 669 [2013]). As the complaint failed to plead all the elements of the tort, the branch of defendant's motion seeking to dismiss this cause of action should have been granted.

Accordingly, the order is modified by providing that the branches of defendant's motion seeking to dismiss the second cause of action, for intentional infliction of emotional distress, the third cause of action, for defamation, and the fourth cause of action, for abuse of process, are granted.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: July 07, 2015