Opinion
12-06-2016
IME WATCHDOG, INC., Plaintiff–Respondent, v. BAKER, McEVOY, MORRISSEY & MOSKOVITS, P.C., et al., Defendants–Appellants.
Mauro Lilling Naparty LLP, Woodbury (Seth M. Weinberg of counsel), for Baker, McEvoy, Morrissey & Moskovits, P.C., appellant. Marjorie E. Bornes, Brooklyn, for American Transit Insurance Company, appellant. Trivella & Forte, LLP, White Plains (Arthur J. Muller, III of counsel), for respondent.
Mauro Lilling Naparty LLP, Woodbury (Seth M. Weinberg of counsel), for Baker, McEvoy, Morrissey & Moskovits, P.C., appellant.
Marjorie E. Bornes, Brooklyn, for American Transit Insurance Company, appellant.
Trivella & Forte, LLP, White Plains (Arthur J. Muller, III of counsel), for respondent.
RENWICK, J.P., SAXE, GISCHE, WEBBER, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered April 20, 2016, which, to the extent appealed from as limited by the briefs, denied defendant Baker, McEvoy, Morrissey & Moskovits, P.C.'s motion to change venue from Bronx County to Kings County, and granted plaintiff's motion for a temporary restraining order enjoining defendants from, inter alia, excluding non-attorneys from independent medical examinations (IMEs), unanimously reversed, on the law, without costs, the motion to change venue granted, and the motion for a preliminary injunction denied. Appeal from an interim order, same court and Justice, entered April 8, 2016, unanimously dismissed, as subsumed in the appeal from the subsequent order.
On a motion to change venue, pursuant to CPLR 510(1), "defendant's burden ... is limited to establishing that the designated county is improper" (Garced v. Clinton Arms Assoc., 58 A.D.3d 506, 509, 874 N.Y.S.2d 18 [1st Dept.2009] ). Baker McEvoy clearly met its burden of proving that the designated county, in which none of the parties resided, was improper (CPLR 503[a] ). Having designated an improper county for venue and not submitted an affidavit showing either that its designation was proper or that Baker McEvoy's designation was improper, plaintiff forfeited its right to select the venue (see Montilla v. River Park Assoc., 282 A.D.2d 389, 723 N.Y.S.2d 670 [1st Dept.2001] ; Lynch v. Cyprus Sash & Door Co., 272 A.D.2d 260, 261, 708 N.Y.S.2d 94 [1st Dept.2000] ).
In this action, plaintiff IME Watchdog, Inc. (IMEWD), a company which provides plaintiffs' personal injury firms with non-attorney "watchdogs" to accompany plaintiffs to IMEs, failed to demonstrate the elements necessary for entitlement to injunctive relief, to wit (1) a likelihood of success on the merits; (2) irreparable injury; and (3) that the balance of equities are in its favor (see Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 800 N.Y.S.2d 48, 833 N.E.2d 191 [2005] ; Doe v. Axelrod, 73 N.Y.2d 748, 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272 [1988] ).
There has been no showing that the alleged tortious conduct which plaintiff seeks to enjoin, Baker McEvoy's exclusion of non-attorneys from IMEs (except under certain circumstances), exceeds its professional duty to defend its clients (see Fried
v. Bower & Gardner, 46 N.Y.2d 765, 767, 413 N.Y.S.2d 650, 386 N.E.2d 258 [1978] ) or was tainted by fraud, collusion, malice or bad faith (see Purvi Enters., LLC v. City of New York, 62 A.D.3d 508, 509–510, 879 N.Y.S.2d 410 [1st Dept.2009] ), especially since several Supreme Court decisions are in Baker McEvoy's favor on the issue of a non-attorney's presence at IMEs.
Additionally, plaintiff has not established that Baker McEvoy's conduct was without excuse and/or justification, an element of the claims for tortious interference with a contract (Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370 [1996] ), abuse of process (see Board of Educ. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL–CIO, 38 N.Y.2d 397, 403, 380 N.Y.S.2d 635, 343 N.E.2d 278 [1975] ), and prima facie tort (see Burns Jackson Miller Summit & Spitzer v. Linder, 59 N.Y.2d 314, 332, 464 N.Y.S.2d 712, 451 N.E.2d 459 [1983] ), or was accompanied by the use of wrongful means or motivated solely by malice, a necessary element of its cause of action for tortious interference with contract (see Snyder v. Sony Music Entertainment, 252 A.D.2d 294, 299–300, 684 N.Y.S.2d 235 [1st Dept.1999] ). Plaintiff's claims of irreparable injury are belied by the fact that business has grown every year, and the testimony of plaintiff's three witnesses reflects that their firms' change in position, on the use of watchdogs, was made in response to adverse court rulings in their cases. The proper remedy, in those instances, would be to appeal the adverse decisions, and not commence a separate action against the attorneys who secured those rulings.