Napoli v James

[*1] Napoli v James 2020 NY Slip Op 50633(U) Decided on May 29, 2020 Supreme Court, New York County Marin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2020
Supreme Court, New York County

Marie Napoli, Plaintiff,

against

Clifford James and LAW OFFICES OF CLIFFORD JAMES, Defendants.



161529/2018
Alan C. Marin, J.

The following efiled documents have been considered by the Court: numbers 7, 91, 97 through

117; 121 through 141; and 143 through 149.[FN1]

This is Clifford James motion to dismiss Marie Napoli's malicious prosecution suit for his representation of Vanessa Dennis in Dennis v Napoli.[FN2] For her part, Ms. Napoli brought a case in Illinois against Ms. Dennis for alienation of affection, a cause of action which was then still on the books.[FN3]

In 2011, Ms. Dennis began as an associate in Napoli Bern Ripka Shkolnik LLP, where Marie Napoli and her husband Paul Napoli practiced law; the latter was a managing partner. Within a year, Ms. Dennis and Mr. Napoli began an affair that by her account lasted 18 months. [*2]Marie Napoli learned of it, and Vanessa Dennis was terminated from the firm.

Dennis v Napoli was begun in Supreme Court, New York County on April 22, 2014 (complaint dated December 3, 2014) to restrain what Ms. Dennis maintained were improper hostile actions on the part of Ms. Napoli. A change of venue to Nassau County was granted on October 15, 2015 (2015 WL 6408463; index no 600454/2016). Marie Napoli's Illinois case was filed on November 10, 2014; its jurisdictional basis was purportedly one night in April of 2013 that Paul Napoli and Vanessa Dennis spent together at the Four Seasons Hotel during a business trip to Chicago.

Marie Napoli states in her memorandum of law that an investigation of Vanessa Dennis turned up information about her "serial affairs." (efiled document 121, p 14). The phrase is accompanied by a footnote, which reads: "That according to Ms. Dennis admissions to Paul, included her previous boss, Mr. Deaton, who purchased her a Mercedes. Despite Mr. Deaton's denials (See Skolnik Aff. Ex. 2 ¶¶ 30-31) Ms. Dennis did in fact drive a Mercedes, the exact same car that Mr. Deaton purchased for his paralegal, he impregnated, after Ms. Dennis left Mr. Deaton's firm. See Mr. Deaton's Facebook postings as Ex.12." [Efiled document 121, page 15.]

The two paragraphs from defendants' affirmation that plaintiff cites are as follows:

"30. Not content with the collapse of Vanessa's career at Napoli Bern, Marie Napoli set about trying to ensure that Vanessa would be unable to obtain employment of any kind, anywhere, ever. On May 21, 2013, Vanessa's former employer, lawyer John Deaton, contacted Vanessa to tell her that both he and his ex-wife had received similar e-mails from Marie Napoli. The e-mail to Mr. Deaton stated:'Hi John, You don't know me but we both know Vanessa Dennis. I understand she worked for you and until recently she worked for my husband. She was sexually [pursuing] my husband . . . My husband stopped her and has fired her . . . After the fact he told me everything. I hear that she has done this kind of thing before and has ruined many marriages. I was lucky that my husband turned her away and she did not ruin mine and wondering if you found a similar issue with her behavior. If you would be kind enough to let me know I would be very appreciative. Best, Marie Napoli.'""Marie Napoli added a postscript: 'I want to know so I can warn any future employer's wives of this if it [is] a recurring problem . . .'""31. Mr. Deaton . . . replied to Marie Napoli with the following: Marie, I am sorry that you are dealing with these issues. However, you assume because I am divorced that somehow that had to do with Vanessa. Also, my ex-wife informed me that you emailed her asking if in fact our divorce had anything to do with Vanessa. My ex-wife and I remain close friends as our divorce was amicable and there were no issues such as the one you suggest. It is very inappropriate to assume such things. First, I was already in the process of divorce before Vanessa started working for me. Second, Vanessa and I never [*3]had an inappropriate relationship.""As far as I knew, She left my firm because she wanted to make more money and relocate to NY with her husband. I don't know what went down between Vanessa and your husband, nor do I care (although I realize that you understandably do). However, any comments by you or anyone else suggesting that Vanessa and I had some inappropriate relationship will be met with swift action by me. Bottom line Marie, I wish you well, but my name and family better not be brought up in any of this nonsense."

[Efiled document 100, pages 13-14; footnote 4 is omitted.]

***

The quoted material conveys something of the entwined, complex nature of the Dennis-Napoli litigation. A cause of action for malicious prosecution requires that four elements be satisfied: "(1) the commencement or continuation of a . . . proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the [plaintiff], (3) the absence of probable cause for the . . . proceeding and (4) actual malice" (Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610, 613).[FN4]

Plaintiff points to the April 11, 2018 statement of Ms. Dennis, which was read into the record by the judge of the Circuit Court, Cook County (efiled documents 7 and 91). Its four paragraphs are cast in terms that Dennis was lacking personal knowledge thereof. For example, Vanessa Dennis had no personal knowledge that: Paul Napoli had any other sexual encounters outside of marriage or that Marie Napoli was the person who sent her anonymous texts messages or emails. In fact, the last sentence of Dennis' statement provides that, "Mrs. Napoli and I mutually agree to not disparage one another in the public media."

***

Prior judicial determinations in this matter demonstrate the existence of probable cause, and thus defeat the claim of malicious prosecution:

* August 12, 2015. Supreme Court, New York County. Justice Cynthia Kern temporarily restrained Marie Napoli from sending communications to Vanessa Dennis' employer, posting derogatory statements to Dennis' Facebook and LinkedIn accounts, or sending unsolicited messages about Dennis to her contacts on those sites (Dennis v Napoli, 2015 WL 4885340 [FN5]). * March 7, 2017. The First Department affirmed Justice Kern's Order, stating: "Plaintiff alleges that defendant Paul J. Napoli authorized defendant Marie Napoli's access to plaintiff's work email account and personnel file and allowed Marie Napoli to use his personal email and Facebook accounts in her endeavor to harass and defame plaintiff. . . Plaintiff demonstrated a likelihood of success on the merits, irreparable harm in the absence of an injunction, and a balancing of the equities in her favor . . . We reject Marie Napoli's argument that her unsolicited communications to plaintiff's professional colleagues, friends, and family about plaintiff's alleged sexual proclivities are constitutionally protected speech; the record supports plaintiff's claims that these communications cause injury to her reputation, jeopardize her employment, and otherwise unnecessarily intrude upon her right to privacy." 148 AD3d 446.* October 26, 2017. Supreme Court, Nassau County. Justice R. Bruce Cozzens denied Napoli's motion to vacate Justice Kern's preliminary injunction. On September 29, 2016, Justice Cozzens had denied her motion to reargue Kern's 2015 Order. (Efiled documents 238 & 371 of index no. 600454/2016).

The cases plaintiff Napoli cites are inapposite. Facebook, supra, was the relatively rare suit in malicious prosecution against a law firm, and the case, involving a forged work-for-hire contract, was dismissed. None of the following cases from plaintiff were suits against a lawyer or law firm: Engel v CBS, Inc., 93 NY2d 195; Thomas v G2 FMV, 147 AD3d 700, 1st Dept; Maskantz v Hayes, 39 AD3d 211, 1st Dept and Parkin v Cornell Univ., Inc., 78 NY2d 523. For example, Maskantz arose from a physical altercation between co-owners of a restaurant. In Parkin, union activists in the midst of a labor dispute were arrested for stealing four boxes of envelopes.

Nor does plaintiff have a basis to sue under section 487 of the Judiciary Law: "Relief under a cause of action based upon Judiciary Law § 487 'is not lightly given' (Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 [1st Dept]) and requires a showing of 'egregious conduct or a chronic and extreme pattern of behavior' on the part of the defendant attorneys that caused damages (Savitt v Greenberg Traurig, LLP, 126 AD3d 506, 507 [1st Dept]). (Facebook, Inc., supra, 134 AD3d at 615). Plaintiff cites Melcher v Greenberg Traurig LLP, 135 AD3d 547, 1st Dept: it involved the operating agreement of a hedge fund and an alleged accidental fire that burned most of an amendment to the agreement.

***

NOW therefore, in view of the foregoing,

IT IS ORDERED, that motion no. 004 is granted and plaintiff Marie Napoli's amended complaint is dismissed against both defendants.

ENTER

May 29, 2020

_______________________________

Alan C. MarinJ.S.C. Footnotes

Footnote 1:The Court emailed counsels on April 17, 2020 that it declined to consider plaintiff's sur-reply. It used document numbers 1, 16, 238 and 371 from Dennis v Napoli, index no. 600454/2016, for filing dates and the citations of two orders referenced in the submissions for 161529/2018.

Footnote 2:There was an additional cause of action for violation of section 487 of the Judiciary Law. Mr. James is a solo practitioner; for ease of reference, the singular "defendant" will be used.

Footnote 3:The Illinois case was captioned, MK Doe v Dennis, No. 14 L 11633, Circuit Court of Cook County, Illinois, Law Division. Illinois Public Act 99-90, entitled the Alienation of Affections Abolition Act, was effective January 1, 2016. Napoli also asserted a cause of action under the Illinois Criminal Conversation Act, 740 ILCS 50/1 et seq, which was repealed the same date. Napoli had a third cause of action, for invasion of privacy. The Illinois complaint is efiled document 16 of index no. 600454/2016.

Footnote 4:Quoted from Broughton v State of New York, 37 NY2d 451, 457, cert denied sub nom. Schanbarger v Kellogg, 423 US 929, a case involving a suit for a malicious criminal prosecution.

Footnote 5:The full caption was Vanessa Dennis v Marie Napoli née Marie Kaiser, Paul J. Napoli, Marc J. Bern, Napoli Bern Ripka Shkolnik, LLP (index no. 153857/2014). All parties stipulated to dismiss Bern from the case; the Court dismissed the claims against the law firm.