Loftus v Arthur

[*1] Loftus v Arthur 2007 NY Slip Op 51586(U) [16 Misc 3d 1126(A)] Decided on July 16, 2007 Supreme Court, Madison County McDermott, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 16, 2007
Supreme Court, Madison County

William Loftus and Cynthia Loftus, Plaintiffs

against

Warner H. Arthur, Priscilla L. Arthur, Ellen Jacobsen and Mary (a/k/a Pringle) Symonds, Defendants.



05-1682



Barry M. Schreibman, Esq., for Plaintiffs;

Smith, Sovik, Kendrick & Sugnet, P.C. (Eric G. Johnson, Esq., of counsel), for Defendants Arthur;

Law Offices of Laurie G. Ogden (P. David Twichell, Esq., of counsel), for Defendant Jacobsen;

Costello, Cooney & Fearon, PLLC (Maureen G. Fatcheric, Esq., of counsel), for Defendant Symonds.

Dennis K. McDermott, J.

This is an action brought to recover money damages for the alleged malicious prosecution by the defendants of certain civil proceedings against the plaintiffs. On March 23, 2007, this court [*2]notified the attorneys that it was electing to treat the defendants' motions to dismiss as motions for summary judgment pursuant to CPLR 3211 (c) and adjourned the return date from March 30 to May 4 to allow them sufficient time to make additional submissions. Later, at the request of two of the three defendants, and without objection from plaintiffs or the other defendant, the return date was adjourned to June 1. The three defendants filed and served their supplemental motion papers prior to mid-May. On May 15, plaintiffs' counsel requested a further adjournment to June 29 and this court granted that request over the mild objection of the defendants. In doing so, the court directed that plaintiffs' supplemental motion papers were to be filed and served no later than June 15.

On June 21, having filed and served no additional papers, plaintiffs' counsel, on notice to the defense attorneys, requested yet another adjournment claiming that he had engaged the services of an unidentified expert to provide proof that plaintiffs have a viable claim for damages, but was unable to schedule a meeting between his expert and plaintiffs and their contractor due to certain physical injuries sustained by the contractor the previous winter and an unspecified "family emergency" facing the plaintiffs. The court promptly notified all attorneys that the adjournment request was being denied and that the motions would be heard at oral argument on June 29.

Factual Background.

Plaintiffs are the owners of residential property situate in the village of Cazenovia, Madison County. Between June 14, 2002 and May 19, 2004, plaintiffs pursued an application before the village Planning Board for site plan approval for the expansion of an existing barn on their property. That application was opposed by the defendants, Warner H. Arthur and Priscilla L. Arthur ("the Arthurs") and Ellen Jacobsen ("Jacobsen") who are the owners of nearby residences. Defendant Mary Symonds ("Symonds") is a member of the Cazenovia Preservation Foundation who, at the apparent request of the other defendants, made appearances at various meetings of the Planning Board and opined that the proposed expansion of the plaintiffs' barn would be "architecturally inappropriate" and otherwise not in keeping with the historic aesthetics of the community.

On May 20, 2004, the Planning Board granted site plan approval for the proposed expansion. The next day, the Arthurs and Jacobsen commenced an Article 78 proceeding challenging that approval. Symonds was not a party to that action and there are no allegations that she participated therein in any manner. This Court (Rumsey, J.) dismissed the proceeding on September 30, 2004, thereby upholding the Planning Board's approval of the plaintiffs' application.

On September 30, 2005, this action was commenced seeking monetary damages for alleged malicious prosecution, the plaintiffs claiming that the defendants acted with malice in their opposition to the application by raising "objection after objection founded on not a scrap of evidence or a single legal principle" and in their commencement of the Article 78 proceeding. Plaintiffs allege that the defendants' malicious conduct unduly prolonged their site plan application process and that this was "akin to the effect of a provisional remedy in that construction of plaintiffs' expanded Barn was delayed and plaintiffs lost the use of their expanded Barn."

Summary Judgment, Generally.

Summary judgment has been described as a "drastic remedy" because it amounts to a finding by the court that there is no issue of fact to be resolved at a trial, thereby obviating the need for any trial at all. Andre v. Pomeroy, 35 NY2d 361 (1974). The party seeking summary judgment is [*3]obliged to "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986). The proffer must constitute more than "mere conclusions, expressions of hope or unsubstantiated allegations or assertions." Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).

Once the moving party establishes his entitlement to judgment as a matter of law, the burden then shifts to the opposing party to establish, by admissible proof, that some genuine issue of a material fact exists. In the face of a motion for summary judgment, the party against whom it is sought is obligated to lay bare his proof, that is, to demonstrate by affidavit or otherwise that one or more triable issues of fact genuinely exist. If such proof is not forthcoming, summary judgment may well be the result. Id.; RM & M Framemakers v. Baucom, 198 AD2d 695 (3d Dept 1993).

If a party seeks summary judgment dismissing a cause of action asserted against him, that party must proffer evidence showing that his adversary's pleadings contain no meritorious claim. Franceschi v. Consolidated Rail Corp., 142 AD2d 915 (3d Dept 1988).

The Court reviews a summary judgment motion in the light most favorable to the party opposing it, giving that party the benefit of every inference that may be reasonably and fairly drawn. Through that prism, the Court determines whether any triable issue of a material fact exists. If it does, then resolution of the issue must await trial. If it does not, then the Court may summarily grant judgment without the need for a trial. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957); Raven Industries, Inc. v. Irvine, 40 AD3d 1241(3d Dept 2007).

Elements of a Cause of Action for Malicious Civil Prosecution.

To state a cause of action for malicious prosecution, the plaintiff must demonstrate that the defendant initiated or prosecuted an action or proceeding against him which ended in the plaintiff's favor and which was entirely lacking in probable cause and motivated by malice. Where the prosecution was civil in nature rather than criminal, there must be further proof that the plaintiff suffered some special injury. Engel v. CBS, Inc., 93 NY2d 195, 205 (1999); Black v. Green Harbour Homeowners' Ass'n, Inc., 37 AD3d 1013 (3d Dept 2007).

The Element of Initiation or Prosecution of the Underlying Action or Proceeding.

It has been held that the key to the first element of the cause of action is the defendant's commencement of the underlying proceeding. Where the defendant merely appeared in an action or proceeding initiated by the plaintiff and is alleged to have interposed improper defenses or other opposition, that is not sufficient to sustain a cause of action for malicious prosecution. Rappaport v. Rappaport, 44 Misc 2d 523 (Sup Ct, New York County 1964), affd. 24 AD2d 844 (1st Dept 1965), lv. den. 16 NY2d 487 (1965); Wolf v. Wolf, 26 AD2d 529 (1st Dept 1966). Even where the defendant testified falsely in the underlying action, that is not a basis for liability under malicious prosecution where the defendant did not initiate the suit. Macauley v. Theodore B. Starr, Inc., 194 App. Div. 643 (1st Dept 1921), affd. 233 NY 601 (1922).

Here, the proceedings before the village Planning Board were brought by the plaintiffs, not by the defendants. For that reason, they do not constitute a prior action or proceeding that would serve as the basis for a malicious prosecution claim. Thus, none of the defendants can be found liable in damages to the plaintiffs for their opposition to plaintiffs' site plan approval application before [*4]the Planning Board, and that portion of the complaint should be dismissed as to all of the defendants.

The defendants Arthur and Jacobsen initiated the Article 78 proceeding to review the Planning Board's approval of the site plan application. Defendant Symonds was not a party to that proceeding and took no part in it. Hence, the balance of the complaint must be dismissed as to her.

The Element of Probable Cause.

Plaintiffs are required to demonstrate that there was an entire lack of probable cause to initiate and prosecute the underlying proceeding and that the lack of probable cause was patent. Perryman v. Village of Saranac Lake, ___ AD3d ___ (3d Dept 6/21/07), 2007 NY Slip Op. 05401; I.G. Second Generation Partners, L.P. v. Duane Reade, 17 AD3d 206 (3d Dept 2005).

In the defendants' Article 78 proceeding, the plaintiffs made a cross-motion for the imposition of costs and sanctions. In denying that application, the court ruled, While the Loftuses may have correctly identified several details of petitioners' arguments that are without support in the relevant law, when viewed in their entirety, petitioners' contentions are not so patently meritless as to be frivolous within the meaning of 22 NYCRR 13-1.1. ... The errors complained of by the respondents do not ... demonstrate the kind of blatant disregard for the truth or the applicable law that are the hallmarks of sanctionable conduct. Accordingly, respondents' cross-motion for costs and sanctions is denied.

The plaintiffs having squarely raised the issue before the Article 78 court, and that court having made a specific finding that that proceeding was not "patently meritless", such finding is binding upon the plaintiffs here. A prior judicial finding that the underlying civil claim, although not ultimately successful, was not frivolous or unsupportable creates a presumption that it did not lack probable cause, and where, as here, plaintiffs fail to rebut that presumption, the result must be dismissal of the malicious prosecution complaint. Fink v. Shawangunk Conservancy, Inc., 15 AD3d 754 (3d Dept 2005).

The Element of Special Damage

Where the underlying action or proceeding was civil in nature rather than criminal, then in addition to the other elements necessary to establish malicious prosecution generally, the plaintiff must also show that he or she has sustained some type of special damage. Engel v. CBS, Inc., supra; Black v. Green Harbour Homeowners' Ass'n, Inc., supra.

More than a century ago, the Court of Appeals held that no cause of action lies for the malicious prosecution of a civil action "unless person or property is interfered with by some incidental remedy, such as arrest, attachment or injunction. As public policy requires that all persons should freely resort to the courts for redress of wrongs, the law protects them when they act in good faith and upon reasonable grounds in commencing either a civil or criminal prosecution." Burt v. Smith, 181 NY 1, 5 (1905).

Here, plaintiffs have alleged in their complaint that they were caused to suffer something "akin to the effect of a provisional remedy in that construction of plaintiffs' expanded Barn was [*5]delayed and plaintiffs lost the use of their expanded Barn." Thus, plaintiffs concede that no actual provisional remedy was used in the Article 78 proceeding. Our Court of Appeals has said, however, that the absence of a provisional remedy in the underlying civil action is not necessarily fatal to the plaintiff's malicious prosecution action if it can be proved that plaintiffs were caused to suffer ... a highly substantial and identifiable interference with person, property, or business. ... Since the role that the special injury requirement fulfills is that of a buffer to insure against retaliatory malicious prosecution claims and unending litigation, we are satisfied that a verifiable burden substantially equivalent to the provisional remedy effect can amount to special injury. Put another way, what is "special" about special injury is that the defendant must abide some concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit (emphasis added). Engel v. CBS, Inc., supra, at 205.

Plaintiffs have alleged that the provisional remedy effect they suffered was the delay caused by the litigation and the resulting loss of use of their expanded barn. In other words, from the time that the Planning Board granted their site plan approval in May, 2004, until the Article 78 proceeding ended in their favor some four months later, they apparently chose to postpone the start of construction and, as a result, they were deprived of the use, not of their existing barn, but of the approved expansion to it. The issue now before this court is, is that sufficient? The answer is, it is not.

The special damages must go beyond the normal incidents of being sued such as incurring legal expenses. Furgang v. JMK Bldg. Corp., 183 AD2d 1062 (3d Dept 1992), app. den. 80 NY2d 756 (1992). It has been held that incidental damage to plaintiff's reputation is insufficient. Campion Funeral Home, Inc. v. State, 166 AD2d 32 (3d Dept 1991), app. den. 78 NY2d 859 (1991). Compare, Groat v. Town Bd. of Town of Glenville, 73 AD2d 426 (3d Dept 1980), app. dismissed 50 NY2d 928 (1980).

Here, to the extent that plaintiffs have alleged that the underlying Article 78 proceeding resulted in them suffering something "akin to a provisional remedy", this court finds their four-month postponement of the start of construction to be insufficient as a matter of law to constitute a substantial interference with their person or property. Moreover, plaintiffs have failed to give this court any reason to believe that yet another postponement of the return date of these motions so their "construction industry expert can put this into context" will yield a different result.

Conclusion.

Defendants have amply demonstrated their entitlement to judgment dismissing the complaint against them. Plaintiffs have submitted no affidavits or other proof in opposition to these motions and have thereby failed to sustain their burden to demonstrate that some genuine triable issue of fact exists warranting the conduct of a trial.

Judgment should, therefore, be summarily entered in favor of the defendants dismissing the complaint in its entirety and granting to the defendants the costs and disbursements of this action in one bill of costs. Submit judgment within sixty (60) days. 22 NYCRR § 202.48.

IT IS SO ORDERED.

Dated: July 16, 2007. [*6]

ENTER:

___________________________________________

Acting J.S.C.