Opinion
No. CV14–0002.
02-17-2017
Sandra GRATTON, Deborah M. McKown, John McKown, Ronald J. Potter, Plaintiffs, v. Dawn R. VADNEY, Defendant.
Whitson, Rogers & Tansey, Elizabethtown (Hilary D. Rogers of counsel), for plaintiffs. Corrigan, McCoy & Bush, PLLC, Rensselaer (Scott W. Bush of counsel), for defendant.
Whitson, Rogers & Tansey, Elizabethtown (Hilary D. Rogers of counsel), for plaintiffs.
Corrigan, McCoy & Bush, PLLC, Rensselaer (Scott W. Bush of counsel), for defendant.
ROBERT J. MULLER, J.
On October 18, 2012 plaintiffs John McKown and Deborah M. McKown were issued criminal summons indicating that each were being charged with the offense in the Town Court of the Town of Elizabethtown in violation of Criminal Tampering in the 3d Degree ( Penal Law 145.14 ) and Education Law § 7209.9(a). The plaintiffs Sandra Gratton and Ronald J. Potter were similarly charged on the same date. The complainant, New York State Trooper Steven R. Hutter on September 15, 2012 affirmed four identical instruments accusing each of the plaintiffs of having entered property owned by the defendant at 4252 Lincoln Pond Road in Elizabethtown, New York and removing, among other items, surveyor's posts which had been previously placed by a licensed land surveyor. The accusatory instruments were supported, inter alia, by a sworn statement given by the defendant in which she stated that previously placed survey markers, among other monuments, had been removed from her property. The defendant's sworn statement specifically requested that the plaintiffs be prosecuted for "trespassing, petit larceny, and whatever penal law charges that they can be charged with."
§ 145.14 Criminal tampering in the third degree
A person is guilty of criminal tampering in the third degree when, having no right to do so nor any reasonable ground to believe that he has such right, he tampers with property of another person with intent to cause substantial inconvenience to such person or to a third person.
Criminal tampering in the third degree is a class B misdemeanor
Any person who knowingly damages, destroys, disturbs, removes, resets, or replaces any boundary marker placed on any tract of land by a licensed land surveyor, or by any person at the direction of a licensed land surveyor, for the purpose of designating any point, course or line in the boundary of such tract of land in which he or she has no legal interest, shall be punished by a civil fine of not more than five hundred dollars and shall be liable for the cost of reestablishment of said boundary marker.
On May 2, 2013 the Town Court, in a written order dismissed with prejudice-and without opposition from the prosecution-the charges against Sandra Gratton, John McKown, and Ronald J. Potter. On July 11, 2013 the local court, now having opposition from the prosecution, proceeded in a written decision to dismiss the two charges against Deborah McKown.
On January 3, 2014 this action was commenced alleging malicious prosecution (First Cause of Action), and abuse of process (Second Cause of Action). Issue was joined on March 20, 2014 and discovery appears to be complete.
Presently before the court is defendant's motion for summary judgment on each cause of action. The plaintiffs have submitted an untimely motion for summary judgment although those papers are accepted by the Court and considered solely in opposition to the present motion ( CPLR 2214(b), CPLR 2215 ). The Court notes that this opposition includes a six page "attorney affidavit" which is, in fact, unsworn.
MALICIOUS PROSECUTION
"The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding, and (4) actual malice" ( Torres v. Jones, 26 NY3d 742, 47 N.E.3d 747, 27 N.Y.S.3d 468 [2016 ]; Broughton v. State of New York, 37 N.Y.2d 451, 335 N.E.2d 310, 373 N.Y.S.2d 87 [1975] ; Shaw v. City of New York, 139 AD3d at 698–699, 31 N.Y.S.3d 155 ).
Hence, a plaintiff asserting a cause of action for malicious prosecution must demonstrate " ‘that a criminal proceeding was commenced; that it was terminated in favor of the accused; that it lacked probable cause; and that the proceeding was brought out of actual malice’ " (Emphasis added) ( Kirchner v. County of Niagara, 107 AD3d 1620, 1621, 969 N.Y.S.2d 277 ; see Engel v. CBS, Inc., 93 N.Y.2d 195, 204, 689 N.Y.S.2d 411, 711 N.E.2d 626 [1999] ). It is noteworthy that the signing complainant in each of these proceedings was New York State Trooper Steven R. Hutter.
With respect to the matter at hand the defendant did call the State Police, and did show a surveillance video depicting individuals engaged in some activity on her property which she then reasonably believed to have been unlawful, and also gave a sworn signed statement requesting that the plaintiffs be prosecuted for "trespassing, petit larceny, and whatever penal law charges that they can be charged with."
With respect to the issue of probable cause, this element of the cause consists of such facts and circumstances that would lead a reasonably prudent person of like circumstances to believe the plaintiffs were guilty ( Colon v. New York, 60 N.Y.2d 78, 455 N.E.2d 1248 [1983] ; Hyman v. New York Central Railroad Company, 240 N.Y. 137 ; Rivera v. New York, 40 AD3d 334 ). The information provided by this defendant was therefore sufficient to provide the police with probable cause to charge the plaintiffs (See generally Lyman v. Town of Amherst, 74 AD3d 1842, 1843, 903 N.Y.S.2d 626 ).
Insofar as the question of malice is concerned the this element is defined as commencing a proceeding based on wrong or improper motives, something other than desire to see the ends of justice served. (See Nardelli v. Stamberg, 44 N.Y.2d 500, 377 N.E.2d 975, 406 N.Y.S.2d 443 [1978] ; Moulton v. State, 114 AD3d 115, 977 N.Y .S.2d 797[2013] ; Britt v. Monachino, 73 AD3d 1462900 N.Y.S.2d 576 [2010] ). Malice may be inferred from a lack of probable cause, ( Berman v. Silver, Forrester & Schisano, 156 A.D.2d 624, 549 N.Y.S.2d 125 (2d Dept 1989) ; see Chu v. Greenpoint Bank, 257 A.D.2d 589, 684 N.Y.S.2d 268 (2d Dept 1999) ). The record is entirely lacking any reliable proof of malice. Here, the defendant contacted the police after her property was trespassed upon and survey markers and boulders were removed and also relied upon a licensed surveyor's report outlining the parameters of her land parcel. This is not evidence of malice. "The law ... places a heavy burden on malicious prosecution plaintiffs" ( Smith–Hunter v. Harvey, 95 N.Y.2d 191, 734 N.E.2d 750 [2000] ; see Munoz v. City of New York, 18 N.Y.2d 6; 271 N.Y.S.2d 645, 218 N.E.2d 527 [1966] ).
Furthermore, the plaintiffs' pleadings do not overcome the presumption of probable cause arising from a decree or order of a judicial officer (see, Rubin v. Houbigant, Inc., 268 N.Y. 552, 198 N.E. 400, affg 243 App.Div. 596, 277 N.Y.S. 615 ; Hodge v. Skinner, 254 App.Div. 42, 4 N.Y.S.2d 406 ; Finsilver v. Still, 240 App.Div. 87, 90, 269 N.Y.S. 9 ; Cook v. Dodge, Sup., 7 N.Y.S.2d 923, 925 ). Likewise, the allegation that the defendant acted with malice is unsupported with any the factual basis (See Howell v. Davis, 43 N.Y.2d 874, 403 N.Y.S.2d 496, 374 N.E.2d 393, affg. 58 A.D.2d 852, 396 N.Y.S.2d 866 ). Accordingly, the cause of action sounding in malicious prosecution must be dismissed.
ABUSE OF PROCESS
Abuse of process and malicious prosecution, although closely related and often confused, are substantially different, ( Board of Ed. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Ass'n, Inc., Local 1889 AFT AFL–CIO, 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975) ). The gist of abuse of process is the improper use of process after it is regularly issued ( Place v. Ciccotelli, 121 AD3d 1378, 995 N.Y.S.2d 348 (3d Dept 2014) ), while the essence of malicious prosecution is the initiation of an action or the causing of process to be issued improperly, that is, without proper basis; (see Assets Collecting Co. v. Myers, 167 App.Div. 133, 152 NYS 930 (1st Dept 1915) ; Pagliarulo v. Pagliarulo, 30 A.D.2d 840, 293 N.Y.S.2d 13 (2d Dept 1968) ).
Abuse of process, an intentional tort, is defined as the misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process ( Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324 ; Board of Ed. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Assn., 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 ).
The four elements of abuse of process are (1) regularly issued legal process, civil or criminal, compelling performance or forbearance of some act, (2) the person activating the process was moved by an ulterior purpose to do harm, without economic or social excuse or justification, (3) the person activating the process sought some collateral advantage or corresponding detriment to the plaintiff that is outside the legitimate ends of the process, and (4) actual or special damage, ( Board of Ed. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Ass'n, Inc., Local 1889 AFT AFL–CIO, 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975) ; Minasian v. Lubow, 49 AD3d 1033, 856 N.Y.S.2d 255 (3d Dept 2008) ; Silberman v. Flaum, 225 A.D.2d 985, 639 N.Y.S.2d 532 (3d Dept 1996) ; Yohay v. Martin, Van De Walle, Guarino & Donohue, 156 A.D.2d 675, 549 N.Y.S.2d 158 (2d Dept 1989) ; Brown v. Bethlehem Terrace Associates, 136 A.D.2d 222, 525 N.Y.S.2d 978 (3d Dept 1988) ; Weisman v. Weisman, 108 A.D.2d 852, 485 N.Y.S.2d 568 (2d Dept 1985) ; Key Bank of Northern New York, N.A. v. Lake Placid Co., 103 A.D.2d 19, 479 N.Y.S.2d 862 (3d Dept 1984).
Ulterior purpose-the third element of this cause-is the intent to cause harm without excuse or justification, ( Curiano v. Suozzi, 63 N.Y.2d 113, 480 N.Y.S.2d 466, 469 N.E.2d 1324 (1984) ; Board of Ed. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Ass'n, Inc., Local 1889 AFT AFL–CIO, 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975) ; 71 Pierrepont Associates v. 71 Pierrepont Corp., 243 A.D.2d 625, 663 N.Y.S.2d 263 (2d Dept 1997) ; Plummer v. Bender, 233 A.D.2d 204, 650 N.Y.S.2d 523 (1st Dept 1996) ; Silberman v. Flaum, 225 A.D.2d 985, 639 N.Y.S.2d 532 (3d Dept 1996) ; Bing v. Sun Wei Ass'n, Inc., 191 A.D.2d 361, 595 N.Y.S.2d 417 (1st Dept 1993) ; Otiniano v. Magier, 181 A.D.2d 438, 580 N.Y.S.2d 759 (1st Dept 1992) ; Felske v. Bernstein, 173 A.D.2d 677, 570 N.Y.S.2d 331 (2d Dept 1991) ; Stroock & Stroock & Lavan v. Beltramini, 157 A.D.2d 590, 550 N.Y.S.2d 337 (1st Dept 1990) ; Simithis v. 4 Keys Leasing & Maintenance Co., 151 A.D.2d 339, 542 N.Y.S.2d 595 (1st Dept 1989) ; Anderson v. Pegalis, 150 A.D.2d 315, 540 N.Y.S.2d 843 (2d Dept 1989) ; LEP Transport Inc. v. Renaissance Intern. Textiles, Ltd., 131 A.D.2d 374, 517 N.Y.S.2d 8 (1st Dept 1987) ; Reed v. Esplanade Gardens, Inc., 111 A.D.2d 85, 489 N.Y.S.2d 211 (1st Dept 1985) ; Hansen v. Rothschild, 83 A.D.2d 548, 441 N.Y.S.2d 27 (2d Dept 1981). Even where defendant acts out of spite or with a malicious motive this is not alone sufficient to sustain a cause of action for abuse of process, Curiano v. Suozzi, supra; Place v. Ciccotelli, 121 AD3d 1378, 995 N.Y.S.2d 348 (3d Dept 2014) ; Liss v. Forte, 96 AD3d 1592, 947 N.Y.S.2d 270 (4th Dept 2012).
In its broadest sense then, abuse of process is defined as the misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process. "This tort is an obscure one ( Italian Star Line v. United States Shipping Bd. Emergency Fleet Corp., 53 F.2d 359, 361 ) which is rarely brought to the attention of the courts ( Dishaw v. Wadleigh, 15 App.Div. 205, 209 ) and the vital elements of which are not clearly defined (see, generally, Prosser, Torts [4th ed], § 121; 1 Harper & James, Torts, § 4.9; Harper, Torts, § 272; Restatement, Torts, § 682 ; Cooley, Torts [4th ed], § 131)." There must be an intent to cause harm without excuse or justification ( Curiano v. Suozzi, 63 N.Y.2d 113, 469 N.E.2d 1324[1984] ).
A review of the moving papers reveals that the defendant was not motivated by an intent to injure the plaintiffs but rather to preserve her perceived rights as landowner and to have recompense for the restoration of unlawfully removal of survey markers. The plaintiffs have offered no proof showing a contrary intent (see, Weaver v. Putnam Hosp. Center, 142 A.D.2d 641, 530 N.Y.S.2d 998 ).
Using the same analysis for the malicious prosecution cause of action-the abuse of process cause of action, based upon the record before this court, is also dismissed, and it is further
ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated December 15, 2016 and the submissions enumerated hereinbelow. Counsel for defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon all parties in accordance with CPLR § 5513.
Papers Submitted:
1. Notice of Motion dated December 15, 2016;
2. Attorney Affidavit of Scott W. Bush sworn to December 15, 2016 together with Exhibits "A" through "H";
3. Affidavit of Dawn R. Vadney sworn to October 3, 2016 together with Exhibit "1" through "5";
4. Memorandum of Law on behalf of defendant dated December 15, 2016;
5. Notice of Cross Motion dated January 23, 2017 together with Exhibits "A" through "D" which is deemed untimely and accepted only in opposition to the Notice of Motion dated December 15, 2016;
6. Memorandum of Law on behalf of plaintiffs dated January 23, 2017 and the
7. Attorney Affidavit of Scott W. Bush sworn to January 26, 2017 together with Exhibit "1".