Pelsinger v Spirer

Annotate this Case

Download PDF

Pelsinger v Spirer 2013 NY Slip Op 32163(U) September 10, 2013 Supreme Court, New York County Docket Number: 150566/2011 Judge: Lucy Billings 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. [*FILED: NEW YORK COUNTY CLERK 09/11/2013 1] INDEX NO. 150566/2011 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/11/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ._ 4,rv BiLUf::'S PART J.S.C. PRESENT: "Iv Justice 'Index Number: 150566/2011 INDEX NO. _ _ _ __ PELSINGER, JAY VS. MOTION DATE _ _ __ SPIRER, GARY SEQUENCE NUMBER: 001 SUMMARY JUDGMENT MOTION SEQ. NO. _ __ The following papers, numbered 1 to ~ I were read on this motion Notice of MotionlOrder to Show Cause Answering Affidavits - Affidavits - Yf/for-t=p~tW'f1,:':-':""!:::'~-'~:.t===r+#~~J!::~~!....-- _ _ Exhibits Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). I I No(s). _ _70- __ _ I No(s). _ _ _ __ , w () i= (J) :J .., o I- o W IX: IX: W u.. W IX: >- ..:.:. ...J~ ...J Z u.. (J) :J 0 I- ct :;; (!) () w W IX: w Z IX: (J) - W (J) ~ 0 ...J ...J ct 0 () u.. Z ~ o o :E i= I- IX: 0 u. Dated: j" flO L-VV'J ()-JIII~S _ _ _ _ _ _ _ _ _ _ , J.S.C. 1. 3 , ¢ ir V ,?,' . , .. " 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 0 0 [g' NON-FINA[ "DiSPOSITION CASE DISPOSED GRANTED 0 SETTLE ORDER o DO NOT POST DENIED G'GRANTED IN PART ~ OTHER o SUBMIT ORDER CJ FIDUCIARY APPOINTMENT C REFERENCE [* 2] ~ )J.r /"-:;.-?p' / \ .~ .. - ~¥ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 ___________ __________________________ x ~ Index No. 150566/2011 JAY PELS INGER and LEONIDES GUADARRAMA, Plaintiffs DECISION AND ORDER - against GARY SPIRER, GS EQUITIES, LTD., and EROSTRA, LLC, Defendants ______________________________________ x LUCY BILLINGS, J.S.C.: I . BACKGROUND Plaintiffs Pelsinger and Guadarrama sue defendants to recover damages for maliciou~ prosecution, abuse of process, and tortious interference with a contract or with business relations. Plaintiffs' claims arise from an action that defendants GS Equities, Ltd~, and Erostra, LLC, commenced in the United States District Court against plaintiffs and other defendants, based on a contractual dispute between those defendants and nonparty Blair Ryan Co., of which Pelsinger was an officer and shareholder, and with which Guadarrama conducted business. Defendants counterclaimed for malicious prosecution and abuse of process. Plaintiffs move for summary judgment on liability for their claims against defendants and for summary judgment dismissing defendants' counterclaims. C.P.L.R. § 3212(b). For the reasons explained below, the court grants plaintiffs' motion to the limited extent set forth. pelsingr.152 1 - [* 3] ":.1, . , <~.~ . " , II. APPLICABLE STANDARDS Plaintiffs, to obtain summary judgment, must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212 (b); Vega v; Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 N.Y.3q 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005); Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003). If plaintiffs satisfy this standard, the burden shifts to defendants to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. 10 N.Y.3d 911, 913 Morales v. D & A Food Serv., (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). In evaluating the evidence for purposes of the 'plaintiffs' motion, the court construes the I evidence in the light most favorable to defendants. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 37 (2004). III. PLAINTIFFS' CLAIMS A. Malicious Prosecution To support a prima facie claim for malicious prosecution, plaintiffs must show that defendants commenced a criminal action against plaintiffs without probable cause and with malice and that the action terminated in plaintiffs' favor. City of Schenectady, 97 N.Y.2d 78, 84 (2001). Martinez v. If defendants encouraged, ,importuned, or played a cat?).ytic role in the pelsingr.152 2 [* 4] criminal action against plaintiffs, defendants may be liable for mali~ious prosecution.Sital v. City of New York, 60 A.D.3d 465, 466 (1st Dep't 2009) i Maskantz v. Hayes, 39 A.D.3d 211; 213 (1st Dep't 2007) i Brown v. Sears Roebuck & Co., 297 A.D.2d 205, 209 (1st Dep't 2002) i Ramos v. City of New York, 285 A:D.2d 284, 298-99 (1st Dep't 2001) . Plaintiffs may base a malicious prosecution claim on the commencement of a civil Racketeer Influenced and Corrupt Organizations Act (RICO) action, 18 U.S.C. § 1964(c), by defendants G.S. Equities and Erostra against plaintiffs. Fischer v~ See Crown Hgts. Jewish Community Council, 1 A.D.3d 187 (1st Dep't 2003) i Fischer v. Chevra Machziket H'Shechuna, 295 A.D.2d 227, 228 (1st Dep't 2002). Although the United States District Court's finding that the RICO claims were frivolous demonstrates a lack of probable cause for commencing the action, see Galland v. Kossoff, 34 A.D.3d 306, 307 (1st Dep't 2006) i Black v. Green Harbour Homeowners' Assn., Inc., 37 A.D.3d 1013, 1014 (3d Dep't 2007) i Fink v. Shawangunk Conservancy, Inc., 15 A.D.3d 754, 755 (3d Dep't 2005), the conflicting affidavits by Pelsinger and Spirer regarding defendants' motivation for the action fail to demonstrate malice as a matter of law. Nineteen N.Y. Props. Ltd. Partnership v. Uk Jee Kim, 251 A.D.2d 104, 105 (ls't Dep't 1998) i (1st Dep't 1997). Hassan v. Marriott Corp., 243 A.D.2d 406, 407 See Du Chateau v. Metro-North Commuter R.R. Co., 253 A.D.2d 128, 132 (1st Dep't 1999). pelsingr.152 3 [* 5] B. Abuse of Process To establish abuse of process, plaintiffs must present evidence of (1) the regular issuance of civil or criminal process, (2) defendants' intent to harm plaintiffs without excuse or justification, and (3) perverted use o·f the process to secure a collateral objective. Curiano v Suozzi, 63N.Y.2d 113, 116 (1984); Casa de Meadows Inc. (Cayman Is.) v. Zaman, 76 A.D.3d 917, 921 (1st Dep't 2010); Fisk Bldg. Assoc. LLC v. Shimazaki II, Inc., 76 A.D.3d 468, 469 (1st Dep't 2010); Matthews v. New York City Dept. of Social Servs., Child Welfare Admin., 217 A.D.2d 413, 415 (1st Dep't 1995). See Tray-Wrap, Inc. v. Pacific Tomato Growers, Ltd., 61 A.D.3d 545, 546 (1st Dep't 2009). Plaintiffs must demonstrate more than defendants' malicious motive to establish abuse of process; such evidence supports only the second element of the claim. Curiano v. Suozzi, 63 N.Y.2d at 117; Matthews v. New York City Dept. of Social Servs., Child Welfare Admin., 217 A.D.2d at 415. Commencing a civil action by a summons and complaint is not process subject to abuse and therefore fails to sustain an abuse of process claim. Meadows Inc. Curiano v. Suozzi, 63 N.Y.2d at 116; Casa de (Cayman Is.) v. Zaman, 76 A.D.3d at 921; Muro-Light v. Farley, 95 A.D.3d 846, 847 (2d Dep't 2012). Couri, 285 A.D.2d 493, 494 (2d Dep't 2001). See Leon v. Here, plaintiffs contend merely that G.S. Equities and Erostra maliciously commenced a baseless civil RICO action to harass and cause monetary harm to plaintiffs in retaliation for their dealings pelsingr.152 4 [* 6] with Blair Ryan. Even accepting plaintiffs' allegations as true, defendants' commencement of the action simply does not constitute abuse of process. Meadows, Inc. Curiano v. Suozzi, 63 N.Y.2d at 117; Casa de (Cayman Is.) v. Zaman, 76 A.D.3d at 921; Muro-Light v. Farley, 95 A.D.3d at 847. Even if the abuse of process claim were based on process other than a civil action's summons and complaint, again the conflicting affidavits by Pelsinger and Spirer would raise factual issues whether the civil process was unjustified and to achieve a collateral objective. Props~ Nineteen N.Y. Ltd. Partnership v. Uk Jee Kim, 251 A.D.2d at 105. C. Tortious Interference With a Contract or With Business Relations A claim of tortious interference with a contract requires (1) a valid contract to which plaintiffs were a party, (2) an actual breach of that contract by another party to the contract, (3) defendants' knowledge of the contract, (4) their intentional procurement of the breach, and (5) damages to plaintiffs from that interference. White Plains Coat & Apron Co., Inc. v. Cintas corp., 8 N.Y.3d 422, 426 (2007); Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 424 (1996); Foster v. Churchill, 87 N.Y.2d 744, 749-50 (1996); Burrowes v. Combs, 25 A.D.3d 370, 373 (1st Dep't 2006). To establish tortious interference with non-binding or prospective business relations, plaintiffs must show that (1) they engaged in business relations with a nonparty, (2) defendants knew of the relationship and interfered with it, (3) their interference derived solely from their malice or from their criminal or pelsingr.152 independent~y tortious conduct, and (4) their 5 [* 7] .. ;~ ! .. interference injured those business relat-ions. Amaranth LLC v. J.P. Morgan Chase & Co., 71 A.D.3d 40, 47 (1st Dep't 2009); Thome v. Alexander & Louisa Calder Found., 70 A.D.3d 88, 108 (1st Dep't 2009). A claim for interference with business relations requires that defendants engaged in more culpable conduct than for interference with a contract. Carvel Corp. v. Noonan, 3 N~Y.3d 182, 189-90 (2004); NBT Bancorp v. Fleet/NorstarFin. Group, 87 N.Y.2d 614, 621 (1996); Leonard v. Gateway II, LLC, 68 A.D.3d 408, 409-10 (1st Dep't 2009); Lobel v. Maimonides Med. Ctr., 39 A.D.3d 275, 277 (1st Dep't 2007). See Schorr v. Guardian Life Ins. Co. of Am., 44 A.D.3d 319 (1st Dep't 2007). Plaintiffs present no evidence identifying a contract with which defendants interfered, see Havana Cent. NY2 LLC v. Lunney's Pub, Inc., 49 A.D.3d 70, 72 (1st Dep't 2007); 330 Acquisition Co., LLC v. Regency Sav. Bank,F.S.B., 19 A.D.3d 174, 175 (1st Dep't 2005); Risley v. Rubin, 272 A.D.2d 198 (1st Dep't 2000); American Preferred Prescription v. Health Mgt., 252 A.D.2d 414, 416 (1st Dep't 1998), or specifying business relations lost from defendants' commencement of the RICO action or publicity about the action. Havana Cent. NY2 LLC v. Lunney's Pub, Inc., 49 A.D.3d at 74; Learning Annex Holdings, LLC v. Gittelman, 48 A.D.3d 211 (1st Dep't 2008); American Preferred Prescription v. Health Mgt., 252 A.D.2d at 416. See Lansco Corp. v. Strike Holdings LLC, 90 A.D.3d 427, 428 (1st Dep't 2011). Therefore, regardless of defendants' opposition, plaintiffs fail to make even a prima facie showing of entitlement to relief on this pelsingr.152 6 [* 8] ., .. ·1'~ ......... ~ claim. Smalls v. AJIIndus., Inc., 10 N.Y.3d at 735; JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d at 384-85. IV. DEFENDANTS' COUNTERCLAIMS Defendants counterclaimed against plaintiffs for malidious piosecution and abuse of process based on plaintiffs' commencement of this action against defendants. Defendants withdrew their counterclaim for malicious prosecution in a stipulation dated October 10, 2012. As discussed above, commencing a civil action by a summons and complaint is insufficient to sustain an abuse of process claim. Suozzi, 63 N.Y.2d at 116; Casa de Meadows Inc. Curiano v. (Cayman Is.) v. Zaman, 76 A.D.3d at 921; Muro-Light v. Farley, 95 A.D.3d at 847. See Leon v. Couri, 285 A.D.2d at 494. Defendants' failure to establish this essential element of abuse of process requires dismissal of defendants' remaining counterclaim. Leon v. Couri, 285 A.D.2d at 494. V. SEARCHING THE RECORD The court may search the record and grant summary judgment to a non-moving party on claims and issues that are subject of a summary judgment motion. New Hampshire Ins. Co. v. MF Global, Inc., 108 A.D.3d 463, 467 (1st Dep't 2013); RPI Professional Alternatives, Inc. v.Citigroup Global Mkts. Inc., 61 A.D.3d 618, 619 (1st Dep't 2009); Scott v. Beth Israel Med. Ctr., Inc., 41 A,D.3d 222, 224 (1st Dep't 2007); Filannino v. Triborough Bridge & Tunnel Auth., 34 A.D.3d 280, 281 (1st Dep't 2006). See Castlepoint Ins. Co. v. Moore, 105 A.D.3d 472, 474 (1st Dep't pelsingr.152 7 [* 9] 2013); Atiencia v. MBBCO II, LLC, 75 A.D.3d 424 (1st Dep't 2010) . A. Defendant Spirer's NenLiability Altheugh plaintiffs meved fer summary judgment against all defendants, nene ef plaintiffs' claims pertain to. defendant Spirer, an ewner ef beth G.S. Equities and Erestra, the parties that cemmenced the federal actien against plaintiffs. Plaintiffs have presented no. evidence to. suppert piercing the cerperate veil to. render Spirer liable fer any ef these business entities' actiens er emissiens. The dectrine ef piercing the cerperate veil applies to. limited liability cempanies (LLCs) like Erestra as well as cerperatiens like G.S. Equities. Matias v. Mende Preps. LLC, 43 A.D.3d 367, 368 (1st Dep't 2007); Retrepelis, Inc. v. 14th St. Dev. LLC, 17 A.D.3d 209, 210 (1st Dep't 2005). To. held Spirer liable fer the actiens er emissiens ef an LLC er a cerperatien, plaintiffs must shew that, as a member er a manager er as a sharehelder er an efficer, he cempletely deminated the LLC er cerperatien, abusing the privilege ef deing business the cerperate ferm, plaintiffs. ~nder to. cemmit a wreng er injustice injuring East Hampten Unien Free Scheel Dist. v. Sandpebble Bldrs., Inc., 16 N.Y.3d 775, 776 (2011}; Merris v. New Yerk State Dept. ef Taxatien & Fin., 82 N.Y.2d 135, 142 (1993); Stewart Tit. Ins. Co.. v. Liberty Tit. Agency, LLC, 83 A.D.3d 532, 533 (1st Dep't 2011); Fantazia IntI. Cerp. v. CPL Furs N.Y., Inc., 67 A.D.3d 511, 512 (1st Dep't 2009) . Plaintiffs peint to. no. facters indicating misuse ef the cerperate ferm. pelsingr.1S2 Merris v. New Yerk State Dept. ef Taxatien & 8 [* 10] Fin .. , 82 N.Y.2d at 143-44; Do Gooder Prods., Inc. v. American Jewish Theatre, Inc., 66 A.D.3d 527, 528 (1st Dep't 2009). Shisgal v. Brown, 21 A.D.3d 845, 848 (1st Dep't 2005). See Even had plaintiffs demonstrated such factors, to pierce the corporate veil plaintiff must demonstrate further that that misuse involved Spirer availing himself of the LLC or corporation as a vehicle for his own personal business. Do Gooder Prods., Inc. v. American Jewish Theatre, Inc., 66 A.D.3d at 528; Shisgal v. Brown, 21 A.D.3d at 848; Brito v. DILP Corp., 282 A.D.'2d 320, 321 (1st Dep't 200'1). Although the complaint alleges that all defendants, including Spirer, commenced and continued the federal RICO action against plaintiffs, the record shows that Spirer was not a plaintiff in that action. While Pelsinger attests that Spirer was responsible for the actions of G.S. Equities and Erostra, neither the complaint nor Pelsinger's affidavit claims any misuse of the corporate form. These omissions are fatal to plaintiffs' claims against an individual owner of defendant corporate entities. B. Plaintiffs' Second and Third Claims Lack Merit. As discussed above, plaintiffs' second claim, for abuse of process, may not rest on defendants' commencement of a civil action. Plaintiffs' third claim, for tortious interference with a contract or with business relations, rests on nothing more than a damaged business reputation and unspecified lost business. Like plaintiffs' evidence regarding this claim, discussed above, the complaint equally fails to identify any contracts breached or pelsingr.152 9 [* 11] ......... specify any business opportunities lost due to defendants' civil RICO action. Plaintiffs' principal evidence, Pelsinger's . affidavit, adds little to these deficient allegations, deficiencies that are similarly fatal to plaintiffs' tortious interference claim. VI. CONCLUSION < Consequently, the court grants plaintiffs' motion for summary judgment to the extent of dismissing defendants' remaining counterclaim for abuse of process, but otherwise denies plaintiffs' motion. C.P.L.R. § 3212(b). Since plaintiffs moved for summary judgment on their claims against defendants, upon searching the record, the court grants summary judgment to defendants and dismisses plaintiffs' claims against defendant Spirer and claims for abuse of process and tortious interference with a contract or with business relations. Id.; Murphy v. RMTS Assoc., LLC, 71 A.D.3d 582, 583 (1st Dep't 2010); RPI Professional Alternatives, Inc. v. Citigroup Global Mkts. Inc., 61 A.D.3d at 619. at 474. See Castlepoint Ins. Co. v. Moore, 105 A.D.3d Thus plaintiffs' claim against defendants GS Equities, Ltd., and Erostra, LLC, for malicious prosecution is the only claim remaining in this action. This decision constitutes the court's order and judgment dismissing defendants' remaining counterclaim, plaintiffs' claims against defendant Spirer, and plaintiffs' second and third claims, for abuse of process and pelsingr.152 10 [* 12] tortious interference with a contract or with business relations. The court will mail copies to the parties. DATED: August 30, 2013 LUCY BILLINGS, J;S.C. LUCY l5!lLlNGS J.S.C~ pelsingr.152 11 I .Jl [* 13] , " i' -, -SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK INDIVIDUAL ASSIGNMENT PART 4-f, STIPULATION INDEX NO. v. .~ \ 'S6Sble / \ \ MOTION CALENDAR NO. ~'l. ~·L. DATE '°1 10(1). IT IS HEREBY STIPULATED AND'AGREED by and between the below-named attorney(s) as follows: 'De:f"'ew. 0AhjTS,. ( M~L' c,~~~ J)6lY\\$ ¢ ~~ \~ F\f1.~'T {(\''''~EC.v:1\~~ .. Attorney for Plaintiff Date: 10 1'0 I I"l- So Ordered. , to ' y for Defendant ENTER: J.S.C. LUCY BILUNGS J.S.C. --.--~ SC-8G (rev 2/86)

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.