Mosbacher v Marks

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Mosbacher v Marks 2005 NY Slip Op 30589(U) September 9, 2005 Supreme Court, New York County Docket Number: 102000/2004 Judge: Shirley Werner Kornreich Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] / 7 I SUPREME COURT qF THE STATE OF NEW YORK COUNTY OF NEW Y,ORK: PART 54 ---------------------------~-----------------------------------------){ MOSHE MOSBACHER 102.~(Jo/.ePo'r Index No.: }.0200/04 -. Plaintiff, DECISION ·and ORDER ~,( -againstSAUL MARKS and JOHN GLEASON, Stp I Defendants, ~~~;c~:s~~;-~~;:-;~~------------------x Cov,v..,../'isw 15 1$tJ 2oos . 'ycl~;~:iit-r. I ryG'J.J This is an acti011 to recover for alleged false arrest and/or malicious prosecution. Plaintiff I ! i and defendant Marks, ~oth engaged in the jewelry business, allegedly made an oral agreement whereby plaintiff sublehsed part of Mr. Marks' office at 37 West 47th Street, Room 705 (the "Premises"). A disputj arose as to the tenns of the agreement, and the relationship apparently became highly contentious. 1 The instant complaint alleges that Mr. Marks, upon advice and counsel of his attomey,[co-defendant John Gleason, made a "false complaint and/or accusation against plaintiff' to the New York City Police Department (''NYPD"), with the intention that I I plaintiff be arrested. Affirmation of J. Gleason, Ex. B. The complaint further alleges that plaintiff was arrested J April 8, 2003, and consequently, suffered physical injury and mental di~pute 'The sublease was the subject of a previous action by plaintiff in Supreme Court, New York County, agaihst Mr. Marks and his landlord, Axial futemational Chartered ("Axial"), styled Moshe Mosbach~ & M Mosbacher Diamond, Corp. v. Axial International and Saul Marks, fudex No. 105770/03. Plaintiff, who sought compensatory damages in the amount of$1.2 million, together with p~tive damages of $250,000, discontinued the action, with prejudice, by stipulation recorded before Justice Ira Gammerman. See Affirmation of J. Gleason, Exhib.it G. 1 [* 2] distress. Defendants c~unterclaimed for recovery of their defense costs, alleging that this action is frivolous. I L Defendants' M~tions Defendants noj move to dismiss plaintiffs complaint pursuant to.CPLR 321 l(a)(7), and for summary judgment ?n their counterclaim. Defendants submit the affirmation of their attorney (Mr. Gleason),!the affidavit of Mr. Marks, copies of pleadings, this Court's Decision and I Order dated December 10, 2004, a transcript of proceedings before Justice Gammerman, and I I copies of correspondenqe between the parties' respective attorneys. Plaintiffs sole submission in ! opposition to both motirs is his attorney's affirmation. IL Background A. I I Plaintiff's Complaint i Plaintiffs comp aint asserts three causes of action. The first alleges that defendant Marks, on advice of his attorney, co-defendant Gleason, "signed a false complaint and/or accusatory instrument aiainst plaintiff," with knowledge and intent that it would lead to his "false arrest," and as a result, the NYPD wrongfully arrested plaintiff. The second alleges that I plaintiff was caused to 'keel terrorized" by the defendants' actions; and the third alleges that I i plaintiff suffered mental and emotional injuries as a result. B. The A Javit o Mr. Marks Mr. Marks avers as follows. In August 2001, he agreed to allow plaintiff to use part of the Premises to store his safe, and conduct business. Affidavit of S. Marks, para. 4. Plaintiff agreed to pay Axial, Mr Marks' employer and landlord, $750 per month beginning in October 2001. Id. at para. 5. M ks agreed to perform some construction, for which plaintiff agreed to 2 [* 3] pay. Id. During construction, in September 2001, plaintiffs mother Adrienne occupied I I I plaintiffs space, answ¥ng telephones and performing clerical work. Id. at para. 7. Construction was com~leted in October. Id. Plaintiff traveled often and rarely visited the Premises. Id. at para. 9;. In November 2001, plaintiff came to the Premises, and Mr. Marks I I presented him with a bill for $1,250 in construction costs, and $.1,500 for use of the Premises in October and November'. Id. Plaintiff responded with invective, and refused to pay anything more than $500 per mohth. Id. at para. 10. Enraged, plaintiff"stormed out of Axial's offices." I Id. at para. 12. Thereafter, plaintiff failed to pay for his use of the space, though Marks repeatedly I requested payment by t~lephone. Id. at para. 13. Plaintiffs mother came to the space "nearly every day," but plaintii "avoided contact" with Marks, and replaced the fire door lock, giving himself a private entranre from the outside corridor. Id. at 14. On March 1, 20r3, Mr. Marks spoke with plaintiff by telephone, and asked him to leave the space by a date certlin. Id. at para. 17. Plaintiff said he would speak to his attorney, and promised to call Marks he next day. Id. Not receiving any call, Marks, on March 6, 2003, again phoned plaintiff to demLd he vacate the space. Id. Plaintiff stated that he intended to stay in the I space, without paying, for five years, and would seek legal counsel. Id. Marks gave plaintiff until March 13 before c Immencing legal action. Id. On that date, Marks called plaintiff, who "began a verbal tirade" romising destruction of Marks' business and expressing his wish that the Premises be "painte in blood." Id. at para. 20. After the March 3 conversation with plaintiff, Mr. Marks "felt imminent threat of physical harm." Id. at p a. 21. He "reported Mosbacher' s threat with the New York City Police 3 [* 4] Department by telephol1e, explaining the recent threats made by Mosbacher and other I aggravating circumstan tial facts." Id. On April 1, 2003, Mr. Marks received a call from plaintiff, 1 I I wherein plaintiff made r e r threats, including a death threat. Id. at para. 22. Marks took no further action with resp ect to plaintiffs threats. On April 8, 2003, NYPD arrested plaintiff and 1 I filed an aggravated har~'.tssment charge against him. Id. at para. 25. On May 1, 2003, Marks ''was deposed and gave acco~mts of the incidents leading to the threats and the threats made by i . I I Mosbacher." Id. at para. 27. "On May 7, Hon. E. Koretz of Criminal Court of the City of New York issued a Temporah Order of Protection ordering Mosbacher to stay away from Axial, ! [Marks'] family and [Marks]." Id. at para. 28. I I C. The AfJU·mation o(Mr. Gleason I Appearing on behalf of his co-defendant, as well as prose, Mr. Gleason affirms that the I instant proceeding was ommenced on February 5, 2004, while the action before Justice I Gammerman was "in ll swing." Affirmation of J. Gleason, para. 61. This Court issued a and a subsequent compliance conference order dated October 14, 2004, plaintiff failed to appear I for his deposition and physical examination, and failed to produce requested documents. ' I According to Mr. Gleasbn, plaintiff's only response to the discovery demands and court orders, I was a motion to disqual ~ fy him as counsel, which the Court denied, on default. Id. at 66. Ill. Conclusions of· aw A. Motion t Dismiss The Court's tas in a CPLR 3211 motion to dismiss is "to determine whether [the] plaintiffs pleadings sta ea cause of action." 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 4 [* 5] I 98 N.Y.2d 144 (2002).1 In making its determination, the Court must "accept the facts as alleged in the complaint as tru~, accord [the] plaintiff the benefit of every possible favorable inference, I and determine only whbther the facts as alleged fit within any cognizable legal theory." Leon v. I Martinez, 84 N.Y.2d 83, 87-88 (1994). Plaintiffs complaint speaks of a "false arrest." Plaintiffs I I attorney refers, in his affirmation, to causes of action for false arrest and/or false imprisonment. See Affirmation of T. Alatsas, para. 23. Therefore, the Court will consider both causes of I action. 2 "A plaintiff ass~rting a common-law claim for false imprisonment must establish that the I I defendant intended to c:onfine the plaintiff, that the plaintiff was conscious of the confinement I I and did not consent to the confinement, and that the confinement was not otherwise privileged." Martinez v. City ofSchinectady, 91 N.Y.2d 78, 85 (2001) citing Broughton, 37 N.Y.2d at 458 n. 2. The First Deparbne~t has held that "a civilian complainant, by merely seeking police assistance or fumishinJ information to law enforcement authorities who are then free to exercise their own judgment as Jo whether an arrest should be made and criminal charges filed, will not be held liable for false arr1st or malicious prosecution." Du Chateau v. Metro-North Commuter 1n Broughton vJ State, 37 N.Y.2d 451 (1975), the Court of Appeals held that "[t]he distinction between fals1e imprisonment and malicious prosecution in the area of arrest depends on whether or not the est was made pursuant to a warrant. As noted in the Restatement, 2d, an unlawful detention giv rise to a cause of action for false imprisonment 'except where the confinement was by arr st under a valid process issued by a court having jurisdiction'. When an unlawful arrest has bee effected by a warrant an appropriate form of action is malicious prosecution. This distin ti on is critical not only because it affects the allegations and proof but also because it brings e prima facie rule into operation." Id. at 457-458 citing Restatement 2d, Torts,§ 35, comment a; Prosser, Torts [4th ed], § 11. Here, the parties do not indicate whether or not the police had aw ant for Mr. Mosbacher's arrest. 2 5 [* 6] I I R.R. Co., 253 A.D.2d rn.8, 131 (1st Dept. 1999) citing Celnickv. Freitag, 242 A.D.2d 436, 437 I (1st Dept 1997); Schiffrfn v. Kramer, 225 A.D.2d 757, 758-759 (2d Dept). ~us, a private individual will not be held liable for false arrest for reporting unlawful conduct to the police ! . unless the plaintiff dem.onstrates that "the defendant took an active role in the (arrest) of the plaintiff, such as giving advice and encouragement or importuning the authorities to act, and that the defendant intended to confine the plaintiff." Lowmack v. Eckerd Corp., 303 A.D.2d 998, 999 1 (4th Dept. 2003) citing Quigley v. City ofAuburn, 267 A.D.2d 978, 980 [1999] (citations ! 1 omitted). Here, plaintiff sj complaint does not allege facts sufficient to state a cause of action for I I false arrest. The compl:aint merely recites that Mr. Marks signed a "false complaint" but does not state with any precision what was false about Mr. Marks' report to the NYPD, nor allege any I facts demonstrating that defendants took an "active role" in the arrest. See Gorman v. Gorman, 88 A.D .2d 677, 678 (21 Dept. 1982) ("[e]ssential material facts must appear on the face of a complaint") citing Gre~chler v. Greschler, 71A.D.2d322, 325 (2d Dept. 1979). Moreover, eveniifthe Court were to find plaintiffs allegation of a "false complaint" I sufficient to state a cause of action for false arrest, defendants' avennents that plaintiff threatened . I Mr. Marks with violenJe "undermines a material fact upon which plaintiffs claim depends." See Wilhelmina Models, Inj. v. Fleisher, 797 N.Y.S.2d 83, 85 (1st Dept. 2005) ("[f]actual allegations r presumed to be true on motion pursuant to CPLR 3211 may properly be negated by affidavits and documentary evid,ce'') citing Biondi v. Beekman Hill House Apt. Corp., 257 A.D.2d 76, 81 (1st Dept. 1999) aff 91.N. Y .2d 659 (2000); Siegel, Practice Commentaries, McKinney's Cons d Laws of NY, Book 7B, CPLR C3211 :25 at 43 (motion lies under paragraph CPLR 321 l(a)(7) 6 [* 7] where defendant "suc,ssfully undermines a material fact upon which plaintiffs claim depends"). Plaintiff p1~ts in no affidavit to contest defendants' assertion that he threatened Mr. Marks with violence. thus, it appears that Mr. Marks was justified in reporting the threats. See I . Du Chateau v. Metro-North Commuter R.R. Co., 253 A.D.2d 128, 131 (1st Dept. 1999) (train i conductor not liable for false arrest for reporting altercation with passenger to transit police); Ce/nick v. Freitag, 242JA.D.2d 436, 437 (1st Dept 1997). Plaintiffs attorney, in response, I affirms that the District! Attorney investigated and failed to find "any actual evidence that the I I plaintiff had ever calle~ the.defendant on the date he alleged in the complaint." Alatsas Aff. at I 1 para. 9. However, it is rell settled that the affirmation of an attorney with no personal knowledge of the matter affirmed is ''without evidentiary value and thus unavailing." See : Zuckerman v. New Yori~, 49 N.Y.2d 557, 563 (1980). Thus, plaintiff has successfully refuted I plaintiff's allegation thdt he made a false report to the NYPD. Consequently, plaintiff's claim for false arrest must be disLissed. C. Malicioi Prosecution J "To prevail on malicious prosecution claim, a plaintiff must establish four elements: (1) I the initiation of a crimi~al proceeding by the defendant against the plaintiff, (2) termination of the proceeding in favo+fthe accused, (3) Jack of probable cause, and (4) malice. Brown v. Sears Roebuck & Co., 297 A.D.2d 205, 208 (1st Dept. 2002) citing Smith-Hunter v. Harvey, 95 N.Y.2d 191, 195; BroJhton v State ofNew York, 37 N.Y.2d 451, 457 cert denied sub nom. Schanbarger v. Kellogl 423 US 929; Hoyt v. City ofNew York, 284 AD2d 501, 502, Iv denied 97 N.Y.2d 603.). As di cussed above, the complaint does not allege that defendants actively initiated a criminal pro eeding against plaintiff, nor does plaintiff provide any evidence to that 7 .._ ' - [* 8] effect. See Brown, 297 A.D .2d at 209 (providing police with information and signing criminal complaint held "insufficient to support a claim for malicious prosecution") citing Du Chateau v. I Metro-North Commuter R.R. Co., 253 A.D.2d 128, 131 (civilian complainant will not be held liable for malicious pro~ecution by merely seeking police assistance or turning infonnation over I I to law enforcement au~orities, who are then free to exercise their own judgment as to whether an arrest is warranted). NQr does the complaint allege facts demonstrating actual malice. Plaintiff . I must demonstrate that defendant '"commenced the prior criminal proceeding due to a wrong or I I improper motive, something other than a desire to see the ends of justice served.'" Du Chateau, I I I 253 A.D.2d at 132 quoting Nardelli v. Stamberg, 44 N.Y.2d 500, 503 (1978). Malice cannot be I inferred from the fact that the criminal case against plaintiff was discontinued. See id. Thus, I plaintiff has failed to state a cause of action for malicious prosecution, and the complaint must be I dismissed. D. f Defendants ' Counterclaim for Frivolous Action Pursuant to 22 cRR § 130-1.l(c), conduct is frivolous if: ( 1) it is completely without merit in law and cannot be supported by a reJonable argument for an extension, modification or reversal . . 1 aw; o f ex1stmg 1 (2) it is t~dertaken primarily to delay or prolong the resolution of the litig~tion, or to harass or maliciously injure another; or (3) it aslerts material factual statements that are false. 22 NYCRR § 130-1.1 The Court has iscretion to impose sanctions for frivolous conduct under 22 NYCRR § 130-1.1. See Premier ~apital v. Damon Realty Corp., 299 A.D.2d 158 (1st Dept. 2002) (court's award of costs to reimbbrse plaintiff for defendants' frivolous conduct, wilfully disobeying court orders, was proper exj ise of discretion). M. discussed above, plaintiff's complaint makes only 8 [* 9] conclusory allegations, rhich defendants have properly negated. Moreover, plaintiffs attorney does not dispute Mr. Gl,eason's assertions that plaintiff has failed to engage in discovery in this ! action, in defiance of1o court orders. The Court concludes, in its discretion, that plaintiff has conducted himself "primarily to delay or prolong the resolution of the litigation, or to harass or I I maliciously injure another," and therefore has engaged in frivolous conduct pursuant to NYCRR § 130-1.l(c)(2). See Ja,lor Color Graphics, Inc. v. Universal Adver. Sys., 2 A.D.3d 165, 166 (1st I Dept. 2003) (''baseless threats constituted frivolous conduct undertaken primarily to harass and I I I intimidate an adversaryt and to frustrate resolution of this commercial litigation"); Timoney v. I Newmark & Co. Real Estate, Inc., 299 A.D.2d 201, 202 (1st Dept. 2002) ("[t]he proper use of I sanctions is a desirable and appropriate way to discourage abusive litigation tactics"). 1 I I Accordingly, it is ORDERED thaj defendants' motion is granted, the plaintiffs complaint is dismissed, and the Clerk is directed to enter judgment accordingly; and it is further ORDERED thaJ the issue of defendants' reasonable attorneys fees and costs in defending this action is referred J a Special Referee to hear and report with recommendations, except that, I in the event of and upo11. the filing of a stipulation of the parties, as permitted by CPLR 4317, the Special Referee, or ano her person designated by the parties to serve as referee, shall determine the aforesaid issue; and it is further ORDERED tha1 this motion is held in abeyance pending receipt of the report and recommendations of thf Special Referee and a motion pursuant to CPLR 4403 or receipt of the determination of the de ignated referee; and it is further ORDERED tha · a copy of this order with notice of entry shall be served on the Clerk of 9 [* 10] the Reference Part (Rodm 119) to arrange a date for the reference to a Special Referee; and it is I further · ORDERED thatithe Clerk shall notify all parties of the date of the hearing on the issue of i damages. The foregoing constitutes the decision and order of th I Date: September 9, 2005 New York, NeWi York I 10

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