Opinion
103287/2007.
Decided January 17, 2008.
On or about August 23, 2007, the plaintiff commenced this action alleging, inter alia, negligent failure to file a late notice of claim in the New York State Court of Claims, breach of contract, prima facie tort, and abuse of process. In lieu of an answer, the defendants have filed this motion to dismiss, pursuant to CPLR § 3211(a)(7) and (a)(8).
This action arises from an underlying legal malpractice action currently pending before this Court, where Mr. Eugene Cacho's initial attorney, Louis Venezia, failed to timely file a notice of claim with the State of New York. As a result, Mr. Cacho severed his representation and hired the plaintiff Minchew Santner Brenner LLP (hereinafter "Minchew"), and Jamie M. Minchew, personally, to represent him in a legal malpractice action against The Law Office of Louis Venezia (hereinafter Venezia). Venezia thereafter hired the defendants John H. Somoza, Eleftherios Kravaris, Melito Anderson, P.C., (hereinafter collectively known as "Somoza"), to represent him in that matter. In the course of his representation, defendant Somoza requested that plaintiff Minchew apply to file a late notice of claim considering that the statute of limitations has not yet expired in the personal injury action, in effect, severely mitigating the damages and/or resolving the case. After this Court repeatedly recommended that the parties in this action cooperate and apply to file a late notice of claim, the defendants impleaded plaintiffs as a third party in the Cacho action which thereafter caused Minchew to bring this retaliatory action alleging the aforementioned causes of action.
See Cacho v. The Law Offices of Louis Venezia and Louis Venezia, Index No. 102554/2006 [Rich. Cty., J. McMahon].
As this Court has noted several times, the statute of limitations to remedy the underlying personal injury claim has not yet expired! The time to make a motion to file the late notice of claim, pursuant to the Court of Claim Act § 10(6) and CPLR § 214(5), does not expire in the underlying personal injury case until February 10, 2009, and then it would be within the discretion of the Court of Claims Judge to allow the underlying action to proceed. With regard to the instant motion, the plaintiff's first cause of action for negligence is improper. "To establish a claim for common-law negligence, a plaintiff must first demonstrate that a defendant breached a legal duty owed to him or her" ( Fernandez v. Elemam , 25 AD3d 752, 752-3 [2nd Dept., 2006]). Here, in opposition to the defendants prima facie establishment that they owed no legal duty to the plaintiffs, Minchew has failed to demonstrate otherwise. As a result, plaintiff's first cause of action is dismissed.
NY Ct. of Claims Act § 10(6) provides that "[a] claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing or serving upon the attorney general the claim or notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."
Plaintiff's second cause of action for tortious interference with contractual relations is also improper. Tortious "interference with contractual relations, consists of four elements: (1) the existence of a contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to plaintiff" Kronos, Inc. v. AVX Corp., 81 NY2d 90, 94). Here, the defendant has established that they did not act intentionally to induce Mr. Cacho to breach a contract or that a contract was even breached between Minchew and a third party. Plaintiff has failed to present any evidence of intentional inducement to breach a contract on the part of defendants. Therefore, dismissal of plaintiff's second cause of action is warranted.
Next, plaintiff alleges tortious interference with business relations or prospective advantage. "Tortious interference with business relations applies to those situations where the third party would have entered into or extended a contractual relationship with plaintiff but for the intentional and wrongful acts of the defendant'" ( M.J. K. Co. v. Matthew Bender Co., 220 AD2d 488, 490 [2nd Dept., 1995]). The plaintiff must prove such malicious interference ( id.). Again, the plaintiff fails to establish a malicious manner on the part of the defendant in attempting to interfere with plaintiff's business relationship/prospective advantage with Mr. Cacho. Accordingly, the plaintiffs' cause of action is defective and insufficient to state a cause of action.
The elements of prima facie tort, the plaintiff's fourth cause of action, "are (1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, and (4) by an act or series of acts that would otherwise be lawful" ( Burns Jackson Miller Summit Spitzer v. Lindner, 59 NY2d 314, 332). Here, the plaintiff has failed to plead any special damages and therefore fails to state a cause of action ( Ginsberg v. Ginsberg, 84 AD2d 573 [2nd Dept., 1983]).
The plaintiff's fifth cause of action for abuse of process requires that "first, there must be regularly issued process, civil or criminal, compelling the performance or forbearance of some prescribed act; second, the person activating the process must be moved by a purpose to harm without that which has been traditionally described as economic or social excuse or justification; and third, the defendant must be seeking some collateral advantage or corresponding detriment to [the] plaintiff which is outside the legitimate ends of the process" ( Berisic v. Winckelman, 40 AD3d 561, 562 [2nd Dept., 2007]). Here, defendant had made a prima facie showing that there was no issued process that required performance or forbearance of any act; that the alleged act of instituting a third party action against Minchew was not intended to harm them and lastly, that no advantage outside the legitimate ends of process was sought ( id.; Panish v. Steinburg, 32 AD3d 383, 383-84 [2nd Dept., 2006]). The plaintiff has failed to state a cause of action for abuse of process ( Berisic v. Winckleman, 40 AD3d at 562).
Next, plaintiff's allege defamation. "The elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se" ( Salvatore v. Kumar, ___ AD3d ___, [2nd Dept., Nov. 5, 2007]). However, where an individual can demonstrate that the alleged defamatory statements were "fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of [their] own affairs, in a matter where [their] interest is concerned" they are to "be afforded the protection of qualified immunity" ( Blackman v. Stagno, 35 AD3d 776, 778 [2nd Dept., 2006]). In this case, the statements made by defendants in their third party action against plaintiffs were made reasonably and for a proper purpose and therefore were privileged ( id.). In opposition, the plaintiff has failed to establish otherwise or prove special harm or defamation per se. Plaintiff's seventh cause of action alleges violations of New York Civil Rights Law § 70, which provides:
If a person vexatiously or maliciously, in the name of another but without the latter's consent, or in the name of an unknown person, commences or continues, or causes to be commenced or continued, an action or special proceeding, in a court, of record or not of record, or a special proceeding before a judge or a justice of the peace; or takes, or causes to be taken, any proceeding, in the course of an action or special proceeding in such a court, or before such an officer, either before or after judgment or other final determination; an action to recover damages therefor may be maintained against him by the adverse party to the action or special proceeding; and a like action may be maintained by the person, if any, whose name was thus used. He is also guilty of a misdemeanor, punishable by imprisonment not exceeding six months.
This cause of action is wholly without merit! There is absolutely nothing in the record to indicate the Mr. Venezio did not consent to the defendant's institution of a third party action against plaintiff's in the Cacho action ( Oceanside Enterprises Inc. v. Capobianco, 146 AD2d 685, 685 [2nd Dept., 1989]). In fact, Mr. Venezio provided this Court with an affidavit that he in fact did authorize defendants to bring a third party action against plaintiff's in the Cacho action and therefore, plaintiff's seventh cause of action is improper and dismissed.
Lastly, plaintiff concedes that the eighth cause of action under CPLR § 8303-a was an improperly pled cause of action and is dismissed. As a result, all causes of action alleged by the plaintiff in their complaint are dismissed. All other requested relief is denied or academic. Finally, this Court will again strongly urge the attorneys involved in these matters to cooperate and set aside these vindictive and unnecessary actions in an effort to resolve this case.
Accordingly, it is,
ORDERED that defendant's motion to dismiss the complaint is granted and the complaint is dismissed in its entirety, and it is further,
ORDERED that all other requested relief is denied or deemed academic, and it is further
ORDERED that the Clerk enter Judgment accordingly.
THIS IS THE DECISION AND ORDER OF THE COURT.