Mahoney v Mayowski

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Mahoney v Mayowski 2020 NY Slip Op 34843(U) October 2, 2020 Supreme Court, Suffolk County Docket Number: Index No. 612744/2017 Judge: Joseph A. Santorelli Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 612744/2017 FILED: SUFFOLK COUNTY CLERK 10/05/2020 11:59 AM NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 10/05/2020 SHORTFORMORD~ORI GINA:LExNo, ORIGINA:LEXNo SHORT FORM ORDER CAL. No. 612744/2017 612744/2017 2019021040T 201902104OT SUPREME COURT STATE OF NEW SUPREME COURT - STATE NEW YORK YORK LA.S. PART SUFFOLK COUNTY I.A.S. PART 10 - SUFFOLK COUNTY PRESENT: PRESENT: 2/27/20 COO (0011 & 002) 002) MOTION MOTION DATE DATE 2/27/20 3/19/20 (003 MOTION C003 & 004) MOTION DATE DATE 3/19/20 ADJ. DATE 7/23/20 7/23/20 DATE Mot. Seq.# Seq. # 001 - MG MG # 002 - MG . MG MG # 003 - MG # 004 004 - MG; MG; CASEDISP CASEDISP Hon. --"-JO=S=E=P' JOSEPH A. SANTORELLI --"-H-=-A::....::..:..... S=A~N'-'-T-=-O=RE=L=L=I'--Justice of Supreme Court Justice of the Supreme Court ---------------------------------------------------------------J( ---------------------------------------------------------------X YOUNG YOUNG & YOUNG, YOUNG, LLP Attorney Attorney for Plaintiff Plaintiff 863 Islip Islip Avenue Avenue New York York 11 722 Central Islip, Islip, New Central 11722 DENISE MAHONEY, MAHONEY, DENISE Plaintiff, Plaintiff, JACOB R. FLEITMAN, FLEITMAN, P.C. JACOB Attorney for Defendants Defendants Mayowski Mayowski and Teehan Teehan Attorney 2061 Deer Park Avenue A venue Deer Park Deer 11729 New York York 11729 Deer Park, Park, New against- - against TERRY TEEHAN and and l TERRY MA YOWSKI, YOW SKI, MELISSA MELISSA TEEHAN WILLIAM WEIGELT, WILLIAM WEIGELT, .:::. Defendants. Defendants. PETER SVERD, ESQ. PETER SVERD, ESQ. Attorney Attorney for Defendant/Third-Party Defendant/Third-Party Plaintiff Plaintiff Weigett Weigett 225 Broadway, Suite 613 Broadway, Suite New 10007 New York, York, New New York York 10007 ______________________________________________________ ---------J( ---------------------------------------------------------------X YOUNG YOUNG & YOUNG, YOUNG, LLP LLP . Attorney Attorney for Third-Party Third-Party Defendant Defendant Tracy Malone Tracy Malone 863 Islip Islip Avenue A venue Central 11722 New York York 11722 Central Islip, Islip, New WILLIAM WEIGELT, WILLIAM WEIGELT, Third-Party Plaintiff, Third-Party Plaintiff, against- - against TRACY MALONE, MALONE, TRACY Third-Party Defendant. Third-Party Defendant. ______________________________________________________ ---------J( ---------------------------------------------------------------X [* 1] 1 of 9 FILED: SUFFOLK COUNTY CLERK 10/05/2020 11:59 AM NYSCEF DOC. NO. 130 INDEX NO. 612744/2017 RECEIVED NYSCEF: 10/05/2020 Mahoney Mayowski Mahoney v Mayowski Index 612744/2017 Index No. 612744/2017 Page Page 2 Order Motion/ Order of Motion/ Notice of judgment : Notice dismissal/summary judgment Upon motion for dismissaUsummary e-filed motion this e-filed read on this papers read following papers the following Upon the defendants by defendants 2020, by February 5, 2020, dated February Weigelt dated William Weigelt to Show plaintiff William defendant/third-partv plaintiff by defendant/third-party papers by suppo~ing papers a?d suppo~ing Cause a?d Show Cause and by 2020, and February 20, 2020, dated February Mahoney, dated Denise Mahoney, plaintiff Denise T~rry by plaintiff 2020, by February 6, 2020, dated February Teehan, dated Melissa Teehan, and Melissa Mayowsk1 and T~rry Mayowskl Answering papers_; Motion and Notice of 2020 ; Notice thlrd-pa!"h' defendant ~racy dated February 20,2020 of Cross Cross Motion and supporting supporting papers _; Answering February 20, Malone, dated ~racy Malone, thtrd-pa!D' defendant and supporting Affidavits and Replying Affidavits 2020 ; Replying March 18, 2020 AffidaVits supportmg papers supporting dated March Mahoney, dated Denise Mahoney, plaintiff Denise papers by plaintiff Affidavits and supportmg Melissa Mayowski and Melissa Terry Mayowski defendants Terry 2020, by defendants July 22, 2020, papers dated July Weigelt dated William Weigelt plaintiff William defendant/third-partv plaintiff papers by defendant/third-party ; Law of Memoranda Teehan, dated July 22,2020, ; Other Memoranda of Law it is Other 2020, Teehan, dated July 22, motion Weigelt, the motion William Weigelt, plaintiff William ORDERED that defendant/third-party plaintiff (#001) by defendant/third-party motion (#001) that the motion ORDERED Mahoney, Denise plaintiff (#003) motion Teehan, (#002) by defendants Terry Mayowski Melissa Teehan, the motion (#003) by plaintiff Denise Mahoney, Melissa and Mayowski Terry defendants (#002) this of this purposes of the purposes consolidated for the Malone are consolidated and the motion Tracy Malone defendant Tracy third-party defendant (#004) by third-party motion (#004) further; determination; and it is further; determination; and Weigelt for dismissal William Weigelt plaintiff William ORDERED that defendant/third-party plaintiff dismissal of of the motion by defendant/third-party that the motion ORDERED granted; and it is him is granted; complaint against him complaint against of the dismissal of Teehan for dismissal Melissa Teehan ORDERED and Melissa Mayowski and Terry Mayowski defendants Terry motion by defendants the motion that the ORDERED that them is granted; complaint against against them granted; and it is complaint against counterclaims against of the counterclaims dismissal ofthe ORDERED that Mahoney for dismissal Denise Mahoney plaintiff Denise motion by plaintiff the motion that the ORDERED her and it is granted; and her is granted; third-party Malone for dismissal ORDERED that defendant Tracy Tracy Malone dismissal of of the third-party third-party defendant motion by third-party that the motion ORDERED granted. her is granted. complaint against her complaint against and Mahoney and Denise Mahoney plaintiff Denise between plaintiff occurred between This that occurred altercation that verbal altercation of a verbal out of arose out action arose This action Mayowski began after her neighbors altercation allegedly allegedly began after defendant defendant Terry Terry Mayowski The altercation 28, 2016. The August 28,2016. neighbors on August street the street across yard front her standing Mahoney spotted looked through the window of his home and spotted Mahoney standing in her front yard across the and home his of window looked through walked into Mayowski walked Mahoney, Mayowski observing Mahoney, waiving After observing him. After obscenities at him. shouting obscenities and shouting finger and waiving her finger Mayowski joined girlfriend, Mayowski's his front yard to confront her. Defendant Melissa Teehan, Mayowski's girlfriend, joined Mayowski Teehan, Melissa Defendant her. yard confront verbal ensuing verbal the ensuing As the Mahoney. As with Mahoney. began arguing shortly after after she overheard overheard the shouting shouting and and began arguing with shortly threatened to assault confrontation ensued, Mahoney allegedly threatened assault the couple. couple. Teehan, Teehan, allegedly allegedly feeling feeling Mahoney allegedly confrontation ensued, made a statement Mayowski made Teehan and Mayowski threatened, statement to the police. Teehan called the police. home and called her home into her returned into threatened, returned also Teehan also harassment. Teehan with harassment. charged with and charged police arrested and was arrested allegedly was Mahoney allegedly and Mahoney arrived and they arrived after they police after her of possession take possession of her police to take causing the police obtained Mahoney, causing against Mahoney, protection against of protection order of ex-parte order obtained an ex-parte Suffolk County County District Office initiated initiated a criminal criminal action action against against Mahoney, Mahoney, and Attorney's Office District Attorney's firearm. The Suffolk plaintiff defendant/third-party plaintiff addition to Mayowski Teehan, defendant/third-party Mayowski and Teehan, 2017. In addition May 5, 2017. held on May hearing was held a hearing During an against her. During testified against and testified William appeared and neighbors, appeared Mahoney' s neighbors, of Mahoney's another of Weigelt, another William Weigelt, returned to the existed, altercation existed, returned of the altercation video of adjournment that a video learned that having learned Weigelt, having trial, Weigelt, of the trial, adjournment of was testimony was previous testimony his previous that some Suffolk County County District District Attorney's Office where some of of his revealed that where he revealed Attorney's Office Suffolk dismiss moved Office Attorney's District untruthful or inaccurate. As a result, the Suffolk County District Attorney's Office moved to dismiss the Suffolk County result, untruthful inaccurate. Following vacated. Following was vacated. her was against her criminal protection against of protection order of Mahoney and the order against Mahoney complaint against criminal complaint against action of causes asserting action dismissal of the complaint, Mahoney commenced the instant action asserting causes of action against instant commenced Mahoney complaint, dismissal of distress, emotional distress, of emotional infliction of the infliction defendants defamation, the prosecution, defamation, malicious prosecution, arrest, malicious false arrest, on false based on defendants based Mahoney' s claims abuse of of legal process. The defendants defendants joined issue denying denying Mahoney's claims and and asserting asserting joined issue process. The and abuse [* 2] 2 of 9 FILED: SUFFOLK COUNTY CLERK 10/05/2020 11:59 AM NYSCEF DOC. NO. 130 INDEX NO. 612744/2017 RECEIVED NYSCEF: 10/05/2020 Mayowski Mahoney Mahoney v Mayowski Index 612744/2017 Index No. 612744/2017 Page 3 between relations between acrimonious relations protracted acrimonious recites protracted affirmative answer recites whose answer Weigelt, whose However, Weigelt, defenses. However, affirmative defenses. infliction Mahoney against ms counterclai himself, Mahoney, and her wife, Tracy Malone, asserted counterclaims against Mahoney for infliction asserted himself, Mahoney, and her wife, Tracy Malone, asserting Malone, asserting Tracy Malone, imp leaded Tracy also impleaded Weigelt also of defamation. Weigelt and defamation. process, and of process, abuse of distress, abuse emotional distress, of emotional response, distress against defamation and the intentional intentional and and negligent of emotion emotion distress against her. In response, infliction of negligent infliction defamation filed was filed issue of issue was note of The note claims. The Weigelt' s claims. of Weigelt's Tracy denying all of action denying third-party action the third-party joined the Malone joined Tracy Malone 25, 2019. on October October 25,2019. complaint the complaint of the dismissal of for dismissal 3212, for and 3212, Weigelt CPLR 3211 (a) (7) and pursuant to CPLR moves, pursuant now moves, Weigelt now fail as him fail against prosecution claims malicious prosecution against him. Weigelt asserts asserts that that the false arrest arrest and malicious claims against him as aa him. Weigelt against three of three one of merely one was merely plaintiff, he was against plaintiff, matter action against instigating the action role in instigating played no role of law, as he played matter of existed cause probable favor, and Mahoney's favor, testifying action was and probable cause existed for for terminated in Mahoney's not terminated was not witnesses, the action testifying witnesses, dismissed, likewise must him against daims her prosecution. Weigelt argues that the defamation claims against him must likewise be dismissed, defamation the that her prosecution. Weigelt argues manner, time, manner, because exception of of his failed to sufficiently sufficiently allege allege time, Mahoney failed trial, Mahoney testimony at trial, his testimony with the exception because with dismissal requests dismissal also requests Weigelt also against her. Weigelt and statements against defamatory statements made defamatory Weigelt made whom Weigelt persons to whom and persons did he did basis the on distress emotional distress of emotional infliction of of basis he negligent infliction and negligent intentional and him for intentional against him claims against the claims of the was trial was at trial conduct at his conduct that his and that Mahoney, and not engage in either either extreme extreme or outrageous outrageous conduct conduct toward toward Mahoney, not engage seek Mayowski and Teehan injury to her. Teehan and Mayowski seek not emotional injury physical or emotional any physical of any cause of proximate cause not the proximate furnished merely furnished they merely that they inter arguing, dismissal of Mahoney's claims on similar bases, arguing, inter alia, that bases, similar on claims dismissal of Mahoney's that determinin in judgment own judgment their own utilized their information determiningg that who utilized officers who police officers responding police the responding information to the truthful were truthful probable cause existed existed for the arrest of of Mahoney, alleged defamatory defamatory statements statements were that the alleged Mahoney, that the arrest probable cause either was it that outrageous so conduct outrageous that and either engage in any conduct not engage did not they did that they and that trial, and during trial, made during and made being. well emotional or injurious to Mahoney's physical emotional well being. physical Mahoney's injurious and counterclaims and the counterclaims of the dismissal of move for dismissal Mahoney separate motions, motions, move of separate way of Malone, by way Mahoney and Malone, that she did not engage third-party claims against against them. contends that engage in any extreme extreme outrageous outrageous Mahoney contends them. Mahoney third-party claims complaints the that and injury, emotional economic conduct, that her conduct did not cause Weigelt economic or emotional injury, and that the complaints Weigelt cause not conduct her that conduct, residence, his at conditions the or neighbor, a and notices concerning Weigelt's the conditions his residence, behavior as neighbor, Weigelt's behavior made concerning notices she made and published letters and statements that were made for legitimate purposes. Mahoney asserts that the statements and letters she published asserts Mahoney purposes. legitimate made were not did and privilege, qualified truth, concerning Weigelt's behavior as a neighbor protected by truth, qualified privilege, and did not protected are neighbor concerning Weigelt's behavior makes Malone se. per defamation per of defamation level of involve allegation allegation of Malone makes they rise to the level that they serious that crimes so serious of crimes involve her. against complaint third-party similar arguments in support of her motion to dismiss the third-party complaint against her. dismiss similar arguments support of her motion liberal pleading a liberal the pleading afford the must afford court must the court On CPLR 3211 (a) (7), the pursuant to CPLR motion pursuant On a motion benefit of the plaintiff true, accord construction,n, accept accept all the complaint as true, accord the plaintiff the benefit of every every pleaded in the complaint the facts pleaded constructio legal cognizable any within alleged, possible inference, and determine only whether the facts, as alleged, fit within any cognizable legal whether only possible inference, and determine 628, AD2d 628, 300 AD2d Hynes v Griebel, NYS2d 972 [1994]; theory 83, 614 NYS2d [1994]; Hynes Griebel, 300 NY2d 83,614 Martinez, 84 NY2d Leon v Martinez, theory (see Leon 2001]). Dept 2001]). NYS2d 537 [2d Dept 430, 737 NYS2d AD2d 430,737 754 Zorej, 291 AD2d Glassman v Zorej, 2002]; Glassman Dept 2002]; NYS2d 293 [2d Dept 754 NYS2d (see one stated has she or he whether not whether action, not of action, The has stated one (see cause of has a cause plaintiff has the plaintiff whether the criterion is whether The criterion of aa proponent of the proponent contrast, ]). 2001 Dept [2d Vorel v NBA Props., AD2d 641, 728 NYS2d 397 Dept 2001]). In contrast, the NYS2d 641, AD2d 285 Vorel v NBA Props., of matter a as judgment to t entitlemen of showing of entitlement summary judgment matter of prima facie showing make a prima must make motion must judgment motion summary judgment Alvarez vv the case issues of law, tendering sufficient evidence evidence to eliminate eliminate any material of fact from from the case (see Alvarez material issues tendering sufficient law, 64 Med. Ctr., 64 New York Prospect [1986]; Winegrad Winegrad v New York Univ. Med. NYS2d 923 [1986]; 320, 508 NYS2d NY2d 320,508 Hosp., 68 NY2d Prospect Hosp., motion, the of denial a requires denial of the motion, NY2d 851, 487 NYS2d 316 [1985]). (1985]). The The failure failure to make such showing showing requires make such NYS2d 316 NY2d 851,487 [* 3] 3 of 9 FILED: SUFFOLK COUNTY CLERK 10/05/2020 11:59 AM NYSCEF DOC. NO. 130 INDEX NO. 612744/2017 RECEIVED NYSCEF: 10/05/2020 Mahoney v Mayowski Mayowski Mahoney Index 612744/2017 Index No. 612744/2017 Page 4 NY2d 320, 508 Hosp., 68 NY2d Prospect Hosp., Alvarez v Prospect regardless of the sufficiency sufficiency of of the opposing papers papers (see Alvarez the opposing regardless of [1980]). 925 NYS2d 427 557, NY2d NYS2d City of of New York, 49 NY2d 427 NYS2d [1980]). New York, Zuckerman v City NYS2d 923; Zuckerman three essential prove three must prove T~ establish establish a claim claim for abuse abuse of of process, essential elements, elements, to wit, plaintiff must process, a plaintiff To and justification, and excuse or justification, without excuse harm without intent to do harm regularlY-Issued criminal, an intent civil or criminal, either civil process either regularly-issued process NY2d 63 Suozzi, v Curiano (see objective the use of of process obtain a collateral collateral objective Curiano Suozzi, NY2d manner to obtain perverted manner process in a perverted 1985]). Dept [2d 206 NYS2d 744,493 AD2d 113,480 NYS2d 466 [1984]; Marks v Marks, AD2d 744, 493 NYS2d 206 Dept 1985]). 113 Marks, Marks [1984]; 466 NYS2d 113,480 process for aa judicial process However, where where the complaint complaint fails to allege allege some some irregular irregular activity activity in the use of of judicial However, property, an plaintiffs property, with the plaintiffs interfered with purpose sanctioned by law, unlawfully interfered process unlawfully the process that the law, or that purpose not sanctioned Suozzi, v Curiano (see fail must process of abuse action to recover damages based upon the alleged abuse of process must Curiano Suozzi, alleged action recover damages based upon AD3d Singh, 47 AD3d LLC v Singh, Mago LLC supra; Williams Williams v Williams, Williams, 23 NY2d 592,596,298 NYS2d [1969]; Mago NYS2d 473 [1969]; NY2d 592,596,298 Dept [2d NYS2d 383,819 AD3d 772, 851 NYS2d 593 [2d Dept 2008]; Pan ish Steinberg, 32 AD3d 383, 819 NYS2d 549 Dept Steinberg, v Dept 2008]; Panish 772,851 NYS2d NYS2d 345 [2d Dept 2006]; Reisman Dept 2004]). 2004]). As for the claims claims 418, 774 NYS2d AD3d 418, P.C., 6 AD3d Lutz, P.C, Kerry Lutz, Reisman v Kerry furnishing assistance police seeking merely predicated on false arrest, "a civilian complainant, by merely seeking police assistance or furnishing arrest, "a civilian complainant, predicated judgment as to their own then free to exercise information to law enforcement enforcement authorities authorities who are then exercise their own judgment information arrest" false arrest" liable for false held liable not be held will not whether charges filed, will criminal charges and criminal made and should be made arrest should whether an arrest Du Chateau see Du NYS2d 822 [2d Dept (Leviev v Bebe Dept 2011]; 2011]; see Chateau vv AD3d 736, 736, 924 NYS2d Inc., 85 AD3d Stores Inc., Bebe Stores (Leviev Relatedly, to Dept 1999]). NYS2d 12 [1st Dept Metro-North Commuter R.R. 128, 131,688 NYS2d 1999]). Relatedly, AD2d 128,131,688 R.R. Co., 253 AD2d Metro-North Commuter 1) establishing burden of plaintiff has the heavy make out an actionable actionable malicious malicious prosecution claim, a plaintiff heavy burden of establishing ((1) prosecution claim, make termination of plaintiff, (2) the termination the commencement against the plaintiff, of proceeding against criminal proceeding of a criminal continuation of commencement or continuation proceeding, probable cause that proceeding favor, (3) the absence absence of of probable cause for the criminal criminal proceeding, plaintiffs favor, proceeding in the plaintiffs that It is 868 [2001]). NYS2d 735 78, NY2d 97 and (4) actual actual malice Martinez v City of Schenectady, NY2d 78,735 NYS2d [2001]). It is Schenectady, of City Martinez (see malice of claim a to defense complete defense crime is a complete noted that probable probable cause cause to believe person committed committed a crime claim of that a person believe that noted Dept NYS2d 195 [2d Dept AD3d 880, 882 NYS2d malicious of New York, 63 AD3d New York, Fortunato v City of prosecution (see Fortunato malicious prosecution specific a of individual another individual of specific accusing another citizen accusing 2009]), "information provided identified citizen provided by an identified and "information 2009]), and Bero, cause probable with police crime is [generally] legally sufficient to provide the police with probable cause to arrest" arrest" (People (People v Bero, provide sufficient legally crime [generally] AD3d 3 Dept., Police Dept., AD3d Monroe Police 581,584,526 NYS2d Wasilewicz v Monroe see Wasilewicz Dept 1988]; see 979 [2d Dept NYS2d 979 AD2d 581,584,526 139 AD2d ]). 2004 Dept 561, 771 NYS2d 170 Dept 2004]). [2d NYS2d The elements elements of of a cause cause of of action action to recover recover damages damages for defamation defamation are a false false statement, statement, judged as fault published authorization to a third-party, constituting fault judged by, at a third-party, constituting privilege or authorization without privilege published without defamation per minimum, a negligence negligence standard, standard, and it must must either either cause cause special special damages damages or constitute constitute defamation minimum, must complaint The 1999]). Dept [1st 1 NYS2d 704 NYS2d York, 261 AD2d 34,704 Dept 1999]). The complaint must AD2d 34, New York, ofNew Dillon v City of se (see Dillon place, time, place, the time, allege the also allege must also and it must set forth the particular particular words words allegedly allegedly constituting constituting defamation, defamation, and set v Dillon (see made were they whom statements were Dillon City of of made and by whom they were made were made the false statements which the manner in which and manner she that prove and plead must New supra at 38). Generally, a plaintiff alleging slander must plead and prove that he or has slander alleging plaintiff Generally, supra York, New NYS2d 857 [1992]). 590 NYS2d NY2d 429, sustained special special damages damages (see Liberman Gelstein, 80 NY2d 429,590 [1992]). Special Special Liberman v Ge/stein, sustained directly flow directly must flow which must value, which pecuniary value, damages something having economic or pecuniary having economic of something loss of the loss of the consist of damages consist 87, AD3d 135 Inc., Holdings, Daily v (Franklin from the injury injury to reputation caused by defamation (Franklin Daily Holdings, Inc., AD3d 87, defamation the reputation caused of result damages as a result of prove special however, prove 21 NYS3d special damages not, however, need not, plaintiff need 2015]). A plaintiff Dept 2015]). NYS3d 6 [1st Dept per se (see slander constituted statement slander if he or she can establish that alleged defamatory statement constituted slander per (see defamatory alleged the that can establish slander if per slander of categories The four 2000]). The four categories of slander per Dept 2000]). NYS2d 467 [2d Dept 449, 711 NYS2d AD2d 449, 274 AD2d Ford, 274 Gatz v Otis Ford, the injure the tend to injure that tend se consist consist of of statements statements ((1) charging plaintiff plaintiff committed committed a serious serious crime; crime; (2) that 1) charging [* 4] 4 of 9 FILED: SUFFOLK COUNTY CLERK 10/05/2020 11:59 AM NYSCEF DOC. NO. 130 INDEX NO. 612744/2017 RECEIVED NYSCEF: 10/05/2020 Mahoney v Mayowski Mayowski Mahoney Index No. 612744/2017 612744/2017 Index Page 5 ~laint~ffin her trade, trade, business business or profession; that plaintiff plaintiff has a loathsome loathsome disease; disease; or (4) profession; (3) that in his or her ~laint~ff NYS2d 857). 429, 590 NYS2d NY2d 429,590 Imputmg unchastity Gelstein, 80 NY2d woman (Liberman v Ge/stein, unchastity to a woman 1mputmg when they are privilege when Statements which otherwise defamatory defamatory may be subject subject to a qualified qualified privilege which are otherwise Statements in the conduct or "fairly made made by a person person in the discharge discharge of of some some public public or private private duty, duty, legal legal or moral, moral, conduct "fairly 211, NY2d 44 v (Toker concerned" is of his own affairs, in a matter where his her] interest concerned" Pollak, NY2d interest [or where matter own affairs, of made ion "communicat a to 219,405 NYS2d NYS2d 1 [1978]). [1978]). Qualified Qualified 'common 'common interest' interest' privilege privilege extends extends "communication made 219,405 NY2d v Ge/stein, (Liberman interest" an have by one person to another upon subject which both have interest" (Liberman Gelstein, 80 NY2d both which in subject a upon person another are statements privilege, 429,437,590 NYS2d 857). 857). When When subject subject to these these forms forms of of conditional conditional privilege, statements 437, 590 NYS2d 429, to truth disregard reckless protected if they were made with malice reckless disregard truth or falsity falsity (Liberman vv or malice with made not were they if protected NY3d Downtown York New v Gelstein, 80 NY2d Downtown Hosp., 31 NY3d NYS2d 857; see Stega 429, 437-438, 590 NYS2d NY2d 429,437-438,590 Ge/stein, 661, 82 NYS3d [2018]). In this this context, context, malice malice "should "should not not be confused confused with with the the concept concept of of malice malice NYS3d 323 [2018]). 437, 429, NY2d 80 Ge/stein, v intent or a motive arising from spite spite or ill will" NY2d 429,437, 590 will" (Liberman Gelstein, motive arising as an evil intent judicial proceeding NYS2d addition to qualified qualified privilege, privilege, statements statements made made at all stages stages of of a judicial proceeding in NYS2d 857). In addition accorded generally are court, the communicationsns among among the parties, counsel, and court, generally accorded an absolute absolute witnesses, counsel, parties, witnesses, communicatio the in issues the to "pertinent" way some in privilege, long the statements may considered some way "pertinent" issues considered be may statements the as long as privilege, NYS2d 425 [1969]; proceeding 505, 307 NYS2d [1969]; Front, Inc. v Khalil, 24 NY2d 505,307 Martirano v Frost, 25 NY2d proceeding (see Martirano 820, 11 NY3d 713, 718, 4 NYS3d NYS3d 581 [2015]; [2015]; Segall Segall v Sanders, 129 AD3d AD3d 819, 819,820, 11 NYS3d NYS3d 235 [2d Dept Dept NY3d regardless and record, the off or on court, of out 2015]). The privilege applies to statements made out of court, off record, regardless or in privilege applies statements made 2015]). of the motive motive with with which which they they were were made made (see (see Park Knoll Knoll Assoc. v Schmidt, Schmidt, 59 NY2d NY2d 205, 205, 464 NYS2d NYS2d of [1983]). 424 [1983]). "The tort tort of of intentional intentional infliction infliction of of emotional emotional distress distress predicates predicates liability liability on the the basis basis of of extreme extreme "The regarded as atrocious outrageous conduct, conduct, which of decency decency as to be regarded atrocious and bounds of transcends the bounds which so transcends and outrageous intolerable in a civilized civilized society" society" (Freihofer (Freihofer v Hearst Corp., 65 NY2d NY2d 135, 143,490 143,490 NYS2d NYS2d intolerable mere insults, than mere more than 7355[[1985]). Thus, the conduct conduct alleged alleged "must "must consist consist of of more insults, indignities, indignities, and 1985]). Thus, 73 annoyances" (Nest/erode (Nestlerode v Federal Federal Ins. Co., 66 AD2d AD2d 504,507,414 504,507,414 NYS2d NYS2d 398 [4th Dept Dept 1979]). 1979]). annoyances" anguish mental Rather, the intentional intentional infliction infliction of of emotional emotional distress distress will be found found where where severe severe mental anguish is is Rather, General v Nader (see harassment of inflicted through a deliberate malicious campaign of harassment Nader Motors campaign malicious and inflicted through deliberate Corp., 25 NY2d 560, 307 NYS2d [1970]). The use ofreligious, of religious, ethnic ethnic or racial racial aspersions aspersions to NYS2d 647 [1970]). NY2d 560,307 Corp., denigrate a person, person, although although deplorable, deplorable, is not not sufficiently sufficiently egregious egregious conduct conduct to sustain sustain a claim claim of of this denigrate 1989]). Dept [2d 513 NYS2d (see Leibowitz v Bank AD2d 169,548 169, 548 NYS2d Dept 1989]). A Leumi Trust Co., 152 AD2d Bank Leumi type (see breach of upon the breach must be premised claim for the negligent negligent infliction infliction of of emotional emotional distress distress generally generally must premised upon of aa claim causes or safety, physical plaintiffs the owed to [the] plaintiff plaintiff which which either either unreasonably unreasonably endangers endangers the plaintiffs physical safety, causes duty owed 342 NYS2d 781 130, 120, AD3d 11 v C. the plaintiff to his her own safety Povich, 11 AD3d 130,781 NYS2d 342 (Sheila safety own her or for fear plaintiff is it As 2009]). Dept [2d 194 NYS2d 875 NYS2d Dept 2004]; 2004]; see Jason v Krey, 60 AD3d AD3d 735, 736, 736,875 Dept 2009]). [1st Dept where predicated conduct, a claim claim for the negligent infliction of of emotional emotional distress distress will fail where negligent infliction negligent conduct, predicated on negligent no allegations allegations of of negligence negligence appear appear in the pleadings pleadings (see (see Daluise v Sottile, 40 AD3d AD3d 801, 803, 837 NYS2d 253 [2d Dept NYS2d Dept 2007], 2007], quoting quoting Russo AD2d 913,913,423 913, 913, 423 NYS2d Dept Russo v Iacono, 73 AD2d NYS2d 175 [2d Dept 1980]). malicious prosecution, the malicious Here, Weigelt Weigelt established, established, prima prima facie, his entitlement entitlement to dismissal dismissal of of the prosecution, Here, instigate not did abuse of of process process claims claims against against him him by demonstrating demonstrating that that he did not instigate the the false arrest, and abuse did dismissed, ly administrative was which criminal action against Maloney, that the action, which was administratively dismissed, not action, that Maloney, against criminal action [* 5] 5 of 9 FILED: SUFFOLK COUNTY CLERK 10/05/2020 11:59 AM NYSCEF DOC. NO. 130 INDEX NO. 612744/2017 RECEIVED NYSCEF: 10/05/2020 Mahoney Mahoney v Mayowski Mayowski Index No. 612744/2017 612744/2017 Index Page 6 Page6 terminate in her her favor, favor, and that that the the police police determined determined probable probable cause cause existed existed where, where, as in this this case, case, the terminate charge was was based based on a civilian civilian complaint complaint alleging alleging the commission commission of of a specific specific crime crime (see Hollender charge Hollender v Trump Vil Vil. Coop., Coop., Inc., 420,461 NYS2d [1983]; Wasilewicz Wasilewicz v Monroe Trump Inc., 58 NY2d NY2d 420,461 NYS2d 765 [1983]; Monroe Police Police Dept., Dept., 3 AD3d 561, 561,771 Stores Inc., AD3d 736, 736, 924 NYS2d AD3d 771 NYS2d NYS2d 170; Leviev Leviev v Bebe Bebe Stores Inc., 85 AD3d NYS2d 822; Fortunato Fortunato v of New York, 63 AD3d AD3d 880, 882 NYS2d of New York, 19 AD3d AD3d 452, 452, 798 NYS2d City of New York, NYS2d 195; Iorio Iorio v City of New York, NYS2d Dept 2005]). 2005]). Although Although the the complaint complaint alleges alleges that that Weigelt Weigelt participated the criminal criminal 437 [2d Dept participated in the proceeding proceeding against against Maloney Maloney out out of of spite, spite, "[a] "[a] malicious malicious motive motive alone alone ... ... does does not not give give rise to a cause cause of of action for abuse abuse of of process" process" (Curiano (Curiano v Suozzi, 117,480 NYS2d 466 [1984]; [1984]; see Liss action Suozzi, 63 NY2d NY2d 113, 117,480 NYS2d 466 Liss v Forte, 96 AD3d AD3d 1592, 1592,947 Dept 2012]). 2012]). Weigelt Weigelt further further demonstrated demonstrated that that the Forte, 947 NYS2d NYS2d 270 [4th Dept complaint failed failed to state state actionable actionable claims claims against against him him for defamation defamation and and the the infliction infliction of of emotional emotional complaint distress. Notably, Weigelt illustrated illustrated that that the the complaint complaint failed failed to particularize particularize the the alleged alleged defamatory defamatory distress. Notably, Weigelt statements or the resulting resulting special special damages damages to Maloney Maloney (see Liberman Gelstein, 80 NY2d 429,590 Liberman v Ge/stein, NY2d 429, 590 statements NYS2d 284 AD2d AD2d 113, 726 NYS2d Dept 2001]; 2001]; Christopher Christopher Lisa NYS2d 857; Rail Rall v Hellman, Hellman, 284 NYS2d 629 [1st Dept Lisa Matthew AD2d 488,514 488,514 NYS2d Dept NYS2d 239 [1st Dept Matthew Policano, Policano, Inc. Inc. v North North Am. Am. Precis Precis Syndicate, Syndicate, Inc., Inc., 129 AD2d 1987]), and the statements statements made made by Weigelt Weigelt during during the criminal criminal proceeding proceeding are absolutely absolutely privileged privileged 1987]), 713,718,4 Schmidt, 59 NY2d (see Front, Front, Inc. Inc. v Khalil, Khalil, 24 NY3d NY3d 713, 718, 4 NYS3d NYS3d 581; Park Park Knoll Knoll Assoc. Assoc. v Schmidt, NY2d 205,464 NYS2d 424; Martirano Frost, 25 NY2d 505,307 NYS2d 425; Segall AD3d 205,464 NYS2d 424; Martirano v Frost, NY2d 505,307 NYS2d 425; Segall v Sanders, Sanders, 129 AD3d 819,820,11 235). As to the the infliction infliction of of emotional emotional distress distress claims, claims, Weigelt Weigelt established established that that his NYS3d 235). 819, 820, 11 NYS3d conduct was neither neither negligent negligent nor nor so extreme extreme and outrageous outrageous as to warrant warrant viable viable claims claims for the conduct intentional or negligent negligent infliction infliction of of emotional emotional distress distress against against him him (see Liberman Gelstein, 80 NY2d intentional Liberman v Ge/stein, NY2d 429,590 York Post 115,596 350 [1993]; [1993]; Park 429, 590 NYS2d NYS2d 857; Howell Howell v New New York Post Co., 81 NY2d NY2d 115, 596 NYS2d NYS2d 350 Park Knoll Knoll Assoc. 205,464 NYS2d 424; Daluise AD3d 801, 801,837 Schmidt, 59 NY2d NY2d 205,464 NYS2d 424; Daluise v Sottile, Sottile, 40 AD3d 837 NYS2d NYS2d 175; Assoc. v Schmidt, Dillon v City of New York, NYS2d 1; Leibowitz Leibowitz v Bank Bank Leumi Leumi Trust Dillon of New York, 261 AD2d AD2d 34, 704 NYS2d Trust Co., 152 AD2d 169,548 169, 548 NYS2d 513). AD2d NYS2d 513). opposition, Mahoney Mahoney failed failed to raise raise triable triable issues issues warranting warranting denial denial of of Weigelt's Weigelt's motion motion (see In opposition, Alvarez 320, 508 NYS2d City of of New York, 49 NY2d Alvarez v Prospect Prospect Hosp., Hosp., 68 NY2d NY2d 320, NYS2d 923; Zuckerman Zuckerman v City New York, NY2d 557,427 NYS2d 925). As noted noted above, above, Weigelt Weigelt did not induce induce Maloney's Maloney's arrest arrest or instigate instigate the 557,427 NYS2d 925). criminal proceeding against her, her, and the statements statements he made made during during the the criminal criminal proceeding were criminal proceeding against proceeding were privileged cannot serve serve as the basis the abuse abuse of of process, process, defamation, defamation, or infliction infliction of of emotional emotional privileged and cannot basis for the distress claims claims (see Park 205, 464 464 NYS2d 424; Weinstock Weinstock v distress Park Knoll Knoll Assoc. Assoc. v Schmidt, Schmidt, 59 NY2d NY2d 205, NYS2d 424; Sanders, AD3d 1019, 1019,42 Dept 2016]). 2016]). Even Even assuming, assuming, arguendo, arguendo, that that the the 42 NYS3d NYS3d 205 [2d Dept Sanders, 144 AD3d statements were were untruthful untruthful and and not not privileged, the complaint complaint fails to specify specify any any alleged alleged special special damages damages statements privileged, the suffered by Maloney Maloney (see Liberman Gelstein, 80 NY2d 429,590 857). Furthermore, Furthermore, the suffered Liberman v Ge/stein, NY2d 429, 590 NYS2d NYS2d 857). emotional distress distress experienced experienced inherent inherent in any police arrest or detention detention is insufficient insufficient to sustain sustain a claim claim emotional police arrest of intentional intentional infliction infliction of of emotional emotional distress distress (see generally Wyllie v District of County County of of of generally Wyllie District Attorney Attorney of Kings, AD3d 714, 714, 770 770 NYS2d Dept 2003]; 2003]; see also Matthaus AD3d 425, 425,49 Kings, 2 AD3d NYS2d 110 [2d Dept see also Matthaus v Hadjedj, Hadjedj, 148 AD3d 49 NYS3d Dept 2017][allegation 20 17][allegation that that defendant defendant made made false false statements statements to the the police causing NYS3d 393 [1st Dept police causing plaintiffs arrest insufficient insufficient to sustain sustain an intentional intentional infliction infliction of of emotional emotional distress distress claim]). claim]). Therefore, Therefore, plaintiffs arrest motion by defendant/third-party defendant/third-party plaintiff William Weigelt Weigelt for dismissal dismissal of of the the complaint complaint against against him him the motion plaintiff William granted. is granted. Teehan and Mayowski Mayowski also also established established their their entitlement entitlement to dismissal dismissal of of the the false false arrest arrest and Teehan malicious prosecution claims against against them. them. Significantly, Significantly, as noted noted above, above, the the criminal criminal proceeding was malicious prosecution claims proceeding was [* 6] 6 of 9 FILED: SUFFOLK COUNTY CLERK 10/05/2020 11:59 AM NYSCEF DOC. NO. 130 INDEX NO. 612744/2017 RECEIVED NYSCEF: 10/05/2020 Mahoney v Mayowski Mayowski Mahoney Index 612744/2017 Index No. 612744/2017 Page Page 7 beyond went beyond Mayowski went Teehan and that Teehan not terminated favor, and and there allegation that and Mayowski there is no allegation Maloney's favor, terminated in Maloney's determining judgment own their exercise merely furnishing a complaint to the police who were free to exercise their own judgment in determining merely furnishing complaint the police who were Hollender v Trump Maloney (see Hollender that cause existed existed to file criminal criminal charges charges against against Maloney Trump Vil. Vii. Coop., Coop., probable cause that probable 822; NYS2d 924 736, AD3d 85 Inc., Stores Bebe Inc., 461 NYS2d AD3d 736,924 NYS2d Leviev v Bebe Stores Inc., NYS2d 765; Leviev 420,461 NY2d 420, Inc., 58 NY2d AD3d New York, of New Iorio v City of Fortunato York, 63 AD3d York, 19 AD3d NYS2d 195; Iorio AD3d 880, 882 NYS2d New York, of New Fortunato v City of and Teehan 170). NYS2d 771 561, AD3d 452, 798 NYS2d 437; Wasilewicz Monroe Police Dep't, 3 AD3d 561, NYS2d Teehan Dep't, Police Monroe v NYS2d 437; Wasilewicz them, as claim against process claim the abuse Mayowski demonstrated entitlement entitlement to dismissal dismissal of of the abuse of of process against them, likewise demonstrated Mayowski likewise criminal the criminal use the improperly use sought to improperly Mayowski sought the complaint and Mayowski Teehan and that Teehan allege that complaint fails to allege making the motive in making malicious motive their alleged proceeding against Maloney after it was commenced, and their alleged malicious was commenced, Maloney after proceeding against process (see Curiano complaint of action action for abuse abuse of of process Curiano v cause of rise to a cause give rise not give does not alone, does police alone, the police complaint to the the Moreover, the 270). Moreover, NYS2d 270). 947 NYS2d AD3d 1592, Suozzi, 113,480 NYS2d 1592,947 Forte, 96 AD3d Liss v Forte, 466; Liss NYS2d 466; NY2d 113,480 Suozzi, 63 NY2d complaint failed failed to state state actionable actionable claims claims against against Teehan Teehan and and Mayowski Mayowski for defamation defamation and the complaint with connection with Mayowski in connection Teehan and made by Teehan infliction statements made and Mayowski Notably, statements distress. Notably, emotional distress. of emotional infliction of experienced due to allegedly experienced Malone allegedly distress Malone the criminal emotional distress the emotional and the privileged, and proceeding are privileged, criminal proceeding negligent intentional arrest, detention, detention, or court court appearance appearance is insufficient insufficient to sustain sustain claims claims for intentional and negligent any arrest, Knoll Park Knoll NYS3d 581; 713, 4 NYS3d NY3d 713, Khalil, 24 NY3d infliction 581; Park Inc. v Khalil, Front, Inc. distress (see Front, emotional distress of emotional infliction of 425; NYS2d 307 505, NY2d 25 Frost, Assoc. NY2d 505, NYS2d 425; Martirano v Frost, 424; Martirano NYS2d 424; 205,464 NYS2d NY2d 205,464 Schmidt, 59 NY2d Assoc. v Schmidt, Kings, 2 Attorney of District Attorney Segall 11 NYS3d Wyllie v District of County County of of Kings, NYS3d 235; Wyllie AD3d 819, 11 Sanders, 129 AD3d Segall v Sanders, NYS2d 110 ). AD3d AD3d 714, 770 NYS2d Mayowski and Teehan motion by Mayowski Mahoney failed to raise issues warranting denial of of the motion Teehan warranting denial triable issues raise triable Mahoney failed York, 49 New York, of New Zuckerman v City 923; Zuckerman NYS2d 923; City of NY2d 320, 508 NYS2d Hosp., 68 NY2d Prospect Hosp., Alvarez v Prospect (see Alvarez another accusing another citizen accusing identified citizen NY2d "[I]nformation provided provided by an identified 925). "[I]nformation NYS2d 925). 427 NYS2d NY2d 557, 427 probable cause with probable police with provide the police individual of of a specific specific crime crime is [generally] [generally] legally sufficient to provide cause to legally sufficient individual person that believe cause probable and arrest" (People v Bero, 139 AD2d 581, 526 NYS2d 979), and probable cause to believe that a person 979), NYS2d AD2d arrest" (People Bero, of Fortunato v City prosecution (see Fortunato malicious prosecution committed City of of malicious claim of defense to a claim complete defense crime is a complete committed a crime that evidence adduce failed Mahoney New York, 63 AD3d 880, 882 NYS2d Moreover, Mahoney failed to adduce any evidence that Moreover, 195). NYS2d AD3d New York, after it was her after against her proceeding against criminal proceeding use the criminal Teehan sought to improperly improperly use Mayowski sought Teehan and Mayowski does not alone, does police the complaint the commenced, and their alleged malicious motive in making the complaint to the police alone, making motive commenced, and their alleged malicious 466; NYS2d 466; 480 NYS2d NY2d 113, Suozzi, 63 NY2d cause of of action action for abuse abuse of of process Curiano v Suozzi, 113,480 process (see Curiano give rise to a cause Mayowski and Teehan made statements Liss v Forte, 96 AD3d 1592, 947 NYS2d 270). Further, the statements made by Teehan and Mayowski Further, 270). NYS2d AD3d 1592, 947 Liss Forte, experienced due to distress experienced emotional distress the emotional and the in connection privileged, and proceeding are privileged, criminal proceeding the criminal with the connection with negligent and negligent intentional and claims for intentional any arrest, sustain claims insufficient to sustain appearance, is insufficient court appearance, detention, or court arrest, detention, Knoll Park NYS3d 581; Park Knoll 713, 4 NYS3d NY3d 713,4 infliction Khalil, 24 NY3d Inc. v Khalil, Front, Inc. distress (see Front, emotional distress of emotional infliction of 425; NYS2d 425; 307 NYS2d 505, 307 NY2d 505, Frost, Martirano Assoc. v Schmidt, 59 NY2d 205, 464 NYS2d 424; Martirano v Frost, 25 NY2d NYS2d 464 205, NY2d Schmidt, Assoc. Mayowski and Teehan by motion Segall 11 NYS3d Therefore, the motion Teehan and Mayowski for NYS3d 235). Therefore, AD3d 819, 11 Sanders, 129 AD3d Segall v Sanders, granted. them is granted. dismissal against them complaint against of the complaint dismissal of Weigelt's counterclaims against against Maloney infliction of of emotional emotional distress, distress, abuse abuse of of Maloney for the infliction Weigelt's counterclaims tenant her caused Mahoney caused her tenant to file a that Mahoney allegation that process, The allegation unavailing. The equally unavailing. defamation are equally process, and defamation focus on which focus counterclaims, which the counterclaims, but the police complaint against against Weigelt unsubstantiated, but only unsubstantiated, not only Weigelt is not police complaint was for a police complaint tenant's Mahoney's alleged malicious motives, to allege that the tenant's complaint to the police was that allege fail Mahoney's alleged malicious motives, issued (Curiano was issued process was after process used after improperly used purpose sanctioned by law, (Curiano v was improperly that it was law, or that purpose not sanctioned Dept NYS2d 348 [3d Dept 995 NYS2d AD3d 1378, Suozzi, 113,480 NYS2d 1378,995 Ciccotelli, 121 AD3d Place v Ciccotelli, 466; Place NYS2d 466; NY2d 113,480 Suozzi, 63 NY2d [* 7] 7 of 9 -.----------FILED: SUFFOLK COUNTY CLERK 10/05/2020 11:59 AM NYSCEF DOC. NO. 130 INDEX NO. 612744/2017 RECEIVED NYSCEF: 10/05/2020 Mahoney v Mayowski Mayowski Mahoney Index No. 612744/2017 No. 612744/2017 Index Page Page 8 AD3d Lubow, 49 AD3d Minasian v Lubow, 2012]; Minasian Dept 2012]; 2014]; Liss 1592,947 NYS2d 270 [4th Dept 947 NYS2d AD3d 1592, Forte, 96 AD3d Liss v Forte, concerning Dept 2008]). 2008]). The The same same reasoning reasoning applies applies to the the allegations allegations concerning civil civil NYS2d 255 [3d Dept 1033, 856 NYS2d purported erection complaints Mahoney Mahoney filed filed with the Town Town of of Babylon Babylon about about Weigelt's Weigelt's purported erection of of an with the complaints towards home, and unpermitted illegal rental of a section section of of his home, and the direction direction of of flood flood lights lights towards rental of unpermitted fence, the illegal there is complaints, there the complaints, making the motivation in making her home. malicious motivation alleged malicious Mahoney's alleged Notwithstanding Mahoney's home. Notwithstanding was it which for purpose the with proof that that she utilized utilized the the process manner inconsistent inconsistent with the purpose which was process in a manner no proof Suozzi, justification (see Curiano designed, or that that the the complaints complaints were were made without social social excuse excuse or justification Curiano v Suozzi, made without designed, v Dist. School Free Union Farmingdale of Educ. 63 NY2d 113,480 NYS2d 466; Board of Educ. of Farmingdale Union Free School Dist. NY2d 113, 480 NYS2d 466; Board of NYS2d 635 380 NYS2d NY2d 397, AFL-CIO, 38 NY2d Farmingdale Classroom Teachers Teachers Assn., 397,380 1889, AFL-CIO, Local 1889, Assn., Local Farmingdale Classroom Forte, 96 v Forte, Liss 2020]; Dept [2d 04449 [1975]; Benjamin v Assad, 186 AD3d 549, 2020 NY Op 04449 Dept 2020]; Liss Slip NY 2020 AD3d Benjamin Assad, AD3d 1592, 1592,947 270). NYS2d 270). 947 NYS2d AD3d behalf, the counterclaims Maloney's behalf, As the complaint complaint alleges alleges intentional intentional conduct conduct on Maloney's counterclaims contained contained in (see distress emotional of infliction negligent the Weigelt's answer fails to allege an actionable claim for the negligent infliction of emotional distress claim actionable allege Weigelt's answer NYS2d Iacono, 73 AD2d Daluise AD3d 801, 837 NYS2d AD2d 913,913,423 913,913,423 NYS2d Russo v Iacono, NYS2d 175; Russo Sottile, 40 AD3d Daluise v Sottile, so conduct in engaged Mahoney that 253). Equally absent from those counterclaims allegations that Mahoney engaged conduct allegations are counterclaims those from absent 253). Equally extreme and outrageous outrageous as to make out a claim claim for the intentional intentional infliction infliction of of emotional emotional distress. distress. As the make out extreme annoyances, it is indignities, and annoyances, insults, indignities, mere insults, conduct amounts to mere claim amounts process claim of process abuse of the abuse underlying the conduct underlying distress claim insufficient for the purposes purposes of of making making out out an intentional intentional infliction infliction of of emotional emotional distress claim (see insufficient NYS2d 398). Nestlerode AD2d 504,507,414 504, 507,414 NYS2d 398). Weigelt's Weigelt's allegations allegations regarding regarding Ins. Co., 66 AD2d Federal Ins. Nest/erode v Federal their cats harming their him of wife accusing her wife the letters letters and and flyers authored authored by Mahoney Mahoney and and her accusing him of harming cats and Mahoney's conduct that Mahoney's requesting demonstrate that conduct was insufficient to demonstrate her also are insufficient harassing her cease harassing that he cease requesting that extreme so and extreme in character, and outrageous in character, calculated "so outrageous were "so distress or were him distress cause him intentionally cause calculated to intentionally Prods. Corp, 58 Home Prods. American Home degree, as to go beyond of decency" decency" (Murphy (Murphy v American bounds of possible bounds beyond all possible degree, Post, 81 New v Howell see NY2d 298,303,461 NYS2d 232 [1983] [1983] [internal [internal citation citation omitted]; omitted]; see Howell New York York Post, NYS2d 232 NY2d 298,303,461 those allegations NY2d [1993]). In any event, event, those allegations are impermissibly impermissibly duplicative duplicative NYS2d 320 [1993]). NY2d 115, 122, 596 NYS2d [1978]; 991 NYS2d 402 NY2d 553, 402 NYS2d of [1978]; Maloney, 43 NY2d Fischer v Maloney, claim (see Fischer defamation claim Weigelt's defamation of Weigelt's Matthaus AD3d 425, 425,425,49 Dept 2017]). 2017]). Furthermore, Furthermore, even even NYS3d 393 [1st Dept 425, 49 NYS3d Hadjedj, 148 AD3d Matthaus v Hadjedj, "curtilage" the on shell shotgun a assuming, arguendo, arguendo, that that Mahoney' Mahoney's s alleged alleged placement of shotgun shell the "curtilage" of of placement of assuming, Weigelt's "Sam" written constituted extreme extreme and and outrageous outrageous conduct conduct written on it constituted name "Sam" with the name home with Weigelt's home not directed was not threat was the threat sufficient to state state an intentional of emotional emotional distress distress claim, claim, the directed to infliction of intentional infliction sufficient of testimony of the testimony belied by the incident are belied this incident Weigelt concerning this allegations concerning Weigelt's allegations Indeed, Weigelt's himself. Indeed, Weigelt himself. his, in placed was shell shotgun the that and Terry Mayowski that the name "Sam" referred child, that the shotgun shell was placed child, his to referred "Sam" name the that Terry Mayowski rather front yard. Weigelt's, front than Weigelt's, rather than inactionable. As the and inactionable. Weigelt's pled and insufficiently pled counterclaims are also insufficiently defamation counterclaims Weigelt's defamation Weigelt accusing statements counterclaims allege the publication of defamatory statements accusing Weigelt of of a serious serious defamatory of publication the allege to fail counterclaims crime, impugning impugning his profession, asserting that that he had had some some loathsome loathsome disease, disease, it failed failed to state state an profession, or asserting crime, NYS2d 857). 429, 590 NYS2d NY2d 429, actionable cause cause of of action action for slander slander per Gelstein, 80 NY2d Liberman v Ge/stein, per se (see Liberman actionable published by and flyers published letters and the letters With counterclaims, the defamation counterclaims, remaining defamation Weigelt's remaining respect to Weigelt's With respect harassment and harassment cruelty and animal cruelty Mahoney other surrounding surrounding neighbors neighbors concerning concerning Weigelt's alleged animal Weigelt's alleged Mahoney to other private or private public a of discharge the are subject subject to qualified qualified privilege as they can be fairly thought of the discharge of public as of thought privilege they can Hosp., 31 Downtown Hosp., New York common interest interest shared shared by neighbors York Downtown Stega v New neighbors (see Stega relate to a common duty, and relate Pollak, Toker 857; NYS2d 590 429,437, NY3d 661,82 NYS3d 323; Liberman v Gelstein, NY2d 429,437,590 NYS2d Toker v Pollak, NY2d 80 Ge/stein, Liberman 323; NYS3d 82 NY3d 661, [* 8] 8 of 9 INDEX NO. 612744/2017 FILED: SUFFOLK COUNTY CLERK 10/05/2020 11:59 AM NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 10/05/2020 Mahoney Mayowski Mahoney v Mayowski Index No. 612744/2017 612744/2017 Page 9 44 NY2d NY2d 211,219,405 NYS2d 1). It is noted noted that that the allegations 211,219,405 NYS2d allegations ofMahoney's of Mahoney's spite spite or ill will in publishing statements are insufficient insufficient to preclude qualified privilege, publishing these these statements preclude qualified privilege, and the burden burden is on Weigelt Weigelt to prove prove that Mahoney Mahoney published published these with malice malice or reckless reckless regard truth (see Liberman Liberman these statements statements with regard for truth NY2d 429,590 NYS2d 857; Stega Stega v New New York Downtown Hosp., Hosp., 31 NY3d NY3d 661, 82 v Ge/stein, Gelstein, 80 NY2d 429,590 NYS2d York Downtown 661,82 NYS3d 323). Moreover, Moreover, Weigelt's Weigelt's defamation failed to allege damages with with the NYS3d defamation counterclaim counterclaim failed allege special special damages particularity required required by CPLR Rall v Hellman, Hellman, 284 AD2d AD2d 113, 726 NYS2d NYS2d 629; Christopher particularity CPLR 3016 3016 (see Rail Christopher Lisa Matthew Matthew Policano, Policano, Inc. Inc. v North North Am. Am. Precis Precis Syndicate, Syndicate, Inc., Inc., 129 AD2d AD2d 488,514 488, 514 NYS2d NYS2d 239). 239). It Lisa is noted general demands judgment lacking lacking any attempt noted that round round figures figures included included in general demands for judgment attempt to itemize itemize the alleged pied by Weigelt, Weigelt, do not state special with the required required specificity alleged loss, such as those those pled special damages damages with specificity (see Drug Drug Research Research Corp. v Curtis Puhl. Co., 7 NY2d NY2d 435,199 435, 199 NYS2d NYS2d 33 [1960]; Franklin v Daily Daily Curtis Publ. [1960]; Franklin Holdings, Inc., Inc., 135 AD3d NYS3d 6 [1st Dept Dept 2015] figure of of $3,000,000 when alleging Holdings, AD3d 87, 21 NYS3d 2015] [round [round figure $3,000,000 when alleging damages damages was insufficient insufficient to state state special special damages]). damages]). Weigelt raise a triable triable issue warranting denial denial of motion (see Alvarez Alvarez v Weigelt failed failed to raise issue in opposition opposition warranting of the motion Prospect Hosp., Hosp., 68 NY2d NY2d 320, 508 NYS2d NYS2d 923; Zuckerman Zuckerman v City of New York, NY2d 557, 557,427 Prospect 320,508 of New York, 49 NY2d 427 NYS2d 925). As noted noted by Weigelt, Weigelt, an accusation insufficient to support NYS2d accusation of of harassment harassment is insufficient support claim claim of of slander Liberman v Ge/stein, NY2d 429, 590 NYS2d NYS2d 857). Although pleadings slander per se (see Liberman Gelstein, 80 NY2d Although the pleadings illustrate the mutual mutual acrimonious relationship between between Weigelt Weigelt and Mahoney, Mahoney, Weigelt Weigelt failed failed to illustrate acrimonious relationship demonstrate that Mahoney and and her wife wife engaged prolonged campaign harassment and demonstrate that Mahoney engaged in a prolonged campaign of of harassment Weigelt' s intentional intentional infliction infliction of intimidation many of intimidation against against him. Further, Further, many of Weigelt's of emotional emotional distress distress claims claims were duplicative inactionable (see Fischer Fischer v Maloney, Maloney, were duplicative of of his defamation defamation claims claims and, are thus, thus, separately separately inactionable NY2d 553, 402 NYS2d NYS2d 991; Matthaus Matthaus v Hadjedj, Hadjedj, 148 AD3d AD3d 425, 425, 49 NYS3d NYS3d 393). The court court 43 NY2d 425, 425, finds the remainder remainder of of Weigelt's Weigelt's arguments arguments to be without without merit merit and insufficient insufficient to defeat Mahoney's defeat Mahoney's prima facie showing. Accordingly, the motion Denise Mahoney Mahoney for dismissal the counterclaims prima showing. Accordingly, motion by Denise dismissal of of the counterclaims against her is granted. granted. against of the foregoing, Malone seeking dismissal of In light of foregoing, the court court also grants grants the motion motion by Malone seeking dismissal of the third-party notes that that the defamation, negligent, and intentional intentional third-party complaint complaint against against her. The court court notes defamation, negligent, infliction of action action contained third-party complaint against Malone Malone infliction of of emotional emotional distress distress causes causes of contained in the third-party complaint against asserted in the counterclaims Mahoney, and are identical those same identical to those same causes causes of of action action asserted counterclaims asserted asserted against against Mahoney, already addressed parties regarding those the court court has already addressed the relative relative arguments arguments made made by the parties regarding the merit merit of of those claims. claims. l020 ~c I _0_o 22 2020 Dated: ..•.L\C I Dated: H A. SANTORELLI SANTORELLI H l.S.C. J.S.C. X [* 9] FINAL DISPOSITION DISPOSITION FINAL 9 of 9 NON-FINAL DISPOSITION DISPOSITION NON-FINAL

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