Opinion
26782/03.
Decided January 25, 2008.
Defendant FLORIDA FRUIT AND VEGETABLE ASSOCIATION (FFVA) moves seeking an Order granting it summary judgment over plaintiff in the instant action. FFVA avers that summary judgment is warranted for a host of different reasons. With regard to plaintiff's cause of action for malicious prosecution, FFVA avers, inter alia, it had probable cause to initiate the prior proceeding upon which the instant action is premised. With regard to plaintiff's cause of action for abuse of process, FFVA avers, inter alia, that it had no intent to harm plaintiff when it initiated the instant action. With regard to plaintiff's cause of action for fraud, FFVA avers that it did not misrepresent any facts to the plaintiff with an intent to deceive. FFVA also seeks summary judgment on its counterclaim against plaintiff for malicious prosecution. FFVA avers that summary judgment on its counterclaim is warranted insofar as, inter alia, plaintiff commenced the instant action absent probable cause. Alternatively, FFVA seeks sanctions commensurate with FVVA's legal fees and costs for the initiation of the within action, which FFVA deems frivolous. Plaintiff opposes the instant motion averring the instant motion is untimely. Plaintiff further avers that questions of fact with regard to its cause of action for malicious prosecution and abuse of process preclude summary judgment. Plaintiff does not oppose FFVA's motion seeking summary judgment over plaintiff's cause of action for fraud nor does it oppose FFVA's motion seeking summary judgment on its counterclaim for malicious prosecution or FFVA's motion seeking sanctions.
This relief was requested for the first time within FFVA's reply.
For the reasons that follow hereinafter, FFVA's motion is hereby granted in part.
The instant action is for alleged personal injuries premised upon malicious prosecution, abuse of process and fraud. The complaint alleges that plaintiff is a buyer, in the business of buying tomatoes from various farmers and shippers which it then sells to consumers and purchasers. Defendant PACIFIC TOMATO GROWERS LTD. (Pacific) is a tomato shipper. The United States Department of Agriculture (USDA) is mandated by statute to provide produce inspections to both shippers and wholesalers. Said inspections are designed to ensure that the produce meets defined standards. In 1997-1999 plaintiff through a broker contracted to purchase various shipments of tomatoes from Pacific. When certain shipments were received by the plaintiff they were not of the quality contracted. As a result, Pacific, knowing that the tomatoes were not of the quality contracted, granted plaintiff a price reduction. In 1999, the United States Government (Government), conducted an investigation called "Operation Forbidden Fruit" (OFF) wherein it undertook to investigate USDA inspectors and shippers at the Hunts Point Market (Market), located in Bronx County, New York. Nine USDA inspectors were indicted for accepting bribes from the buyers and several of the buyer's employees were indicted for bribing USDA inspectors. One of the employees indicted was Anthony Spinale (Spinale) an employee with the plaintiff. Eight USDA inspectors pled guilty to the charges and a ninth ultimately pled guilty as well, but not before cooperating with the Government and its investigation.
Plaintiff alleges that on March 27, 2000, FFVA filed an informal complaint with the USDA on behalf of Pacific and against plaintiff. Pacific, despite knowledge that the adjustments on tomatoes sold to plaintiff were warranted, sought reimbursement for the adjustments. Pacific sought reimbursement on eight loads of tomatoes despite previously granting plaintiff an adjustment on many other shipments and failed to seek reimbursement on a load of tomatoes which was part of Spinale's indictment. In April 2001, FFVA filed a formal complaint with the USDA on behalf of Pacific and against plaintiff seeking reimbursement for adjustments granted to plaintiff totaling $38,000 plus interest and costs. On February 6, 2002, the USDA issued a decision awarding Pacific the damages it sought. Plaintiff subsequently sought an appeal of the USDA's decision in the United States District Court, Southern District of New York (SDNY) pursuant to the Perishable Agricultural Commodities Act (PACA). Upon plaintiff's filing of the appeal, Pacific discontinued its action with prejudice, withdrew its complaint with the USDA, and executed a stipulation dismissing the action.
Plaintiff's first cause of action alleges that the stipulation dismissing the action was an adjudication that defendants had no factual or legal basis to file the complaint with the USDA. It is alleged that defendants knew that the allegations in the complaint were false and that they were nonetheless wrongfully and willfully made with the intent to extort and defraud the plaintiff, using OFF and the guilty pleas resulting therefrom as a basis. As a result of defendants' abuse of process, commencement, and prosecution of the prior actions, plaintiff was caused to expend time, energy and $50,000 in defending the action. As a result of defendants' actions designed to extort and defraud plaintiff, $500,000 in punitive damages is sought. Plaintiff's second cause of action, albeit in a more brief fashion, reiterates the first cause of action.
Within its answer FFVA interposes a counterclaim. FFVA, in its counterclaim, alleges that in April 2002, Pacific filed a complaint against plaintiff for reimbursement of unauthorized adjustments. On February 6, 2002, the USDA issued a decision in Pacific's favor. Plaintiff filed an appeal in the SDNY. Subsequently, plaintiff and Pacific reached a settlement and Pacific withdrew its complaint. Plaintiff commenced the instant action against FFVA despite knowledge that FFVA was not a party to the actions between Pacific and plaintiff, despite knowing that it had no viable cause of action and despite knowledge that the Court of Appeals, Second Circuit issued a decision affirming the USDA's decision in favor of a seller in a case involving identical facts. Plaintiff, knowing that the allegations against FFVA were false, willfully and maliciously prayed upon FFVA for the sole purpose of extorting and defrauding FFVA. FFVA seeks punitive damages in the amount of $500,000 and seeks to recover legal fees incurred in connection with the instant action.
In support of the instant motion FFVA submits an affidavit from Michael J. Stuart (Stuart) wherein he states, in pertinent part, as follows. Stuart is president of FFVA, responsible for overseeing all of FFVA's financial and business related matters. FFVA is located in Florida and it is an agricultural trade organization representing Florida's producers of fruits, vegetables and other crops. FFVA assists its members in a broad range of farming issues, including representing its members in administrative reparation actions before the PCACA branch of the USDA. Mike Bess (Bess), an employee of FFVA was the person designated to assist FFVA members with any reparation actions. In 1999, Stuart became aware of a bribery scandal at the Market upon receiving various telephone calls from people in the PACA department of the USDA. On November 1, 1999, news of the scandal was published in a newspaper called The Packer. The newspaper account indicated that the USDA had conducted a three year investigation with regard to the bribery of USDA inspectors by the produce companies at the Market. The investigation was called OFF and the plaintiff in the instant action was named as one of the companies that bribed inspectors into downgrading the quality of the fruit received in order to negotiate a price reduction with the shipper. On November 9, 1999, the USDA issued a memo to members of the produce industry apprising them of OFF. The memo indicated that eight USDA inspectors had been arrested in connection with OFF and implicated thirteen produce receivers stationed at the Market. In March 2000, the USDA posted information on its website summarizing OFF. Information was also provided explaining how to seek monetary restitution from companies involved in the bribery scandal.
In support of its motion FFVA submits a legion of documents. However the bulk of the documents submitted are in inadmissible form and as such constitute inadmissible hearsay for which no evidentiary foundation is laid. Consequently, much of what has been submitted cannot be considered in support of the instant motion. Accordingly, this Court shall only endeavor to discuss those documents which are admissible. The very same is true of many documents submitted by plaintiff in opposition to the motion. The parties herein make a failed attempt at admissibility by stating the documents annexed to the instant motion and opposition thereto are true and accurate copies of the records. However, that does not form the basis for their admission and falls woefully short of the requisite foundation for admitting said documents as business records.
FFVA's members who had shipped produce to market companies involved in OFF were interested in seeking restitution for any downward price adjustments they agreed to based on tainted inspections. To the extent that these members granted price adjustments without knowledge of the bribery scandal at the Market and there was no way for them to assess the actual condition of the fruit for which they granted price adjustments, these members initiated reparations actions against many of the sellers at the market. FFVA assisted the members and assisted Pacific in a reparation action against the plaintiff, whose employee Spinale pled guilty to the bribery charges stemming OFF. On March 30, 1999, FFVA filed an informal complaint on behalf of Pacific against the plaintiff with the PACA department of the USDA. Thereafter, a formal complaint was filed as well as the other required documents, including an opening statement, an answering statement, a statement in reply, and legal briefs. Based on the submissions, on February 6, 2002, the Secretary of Agriculture (Secretary) issued a decision in Pacific's favor awarding it $38,000, interest and a filing fee. Plaintiff appealed to the SDNY and in connection therewith, FFVA was unable to act as Pacific's representative in the appeal, Pacific retained counsel.
Sometime during the procedural history of the instant reparation action, another FFVA member, DiMare Homestead, Inc. (DiMare) brought an identical reparation action against a Market receiver, Koam Produce, Inc. (Koam). DiMare prevailed and Koam appealed to the SDNY. The SDNY affirmed the Secretary's decision and when Kaom appealed that determination, the decision was affirmed. Pacific's counsel spoke to counsel for DiMare and counsel in another similar case and learned that in those cases the shipper was unable to fully recover all legal fees. Based on that, Pacific determined that it would be too time consuming and costly to pursue the action any further. Pacific settled the appeal and agreed to discontinue the reparation action.
FFVA submits a copy of the decision, dated February 6, 2002, issued by the Secretary in the reparation action filed by Pacific against the plaintiff. Said action was one pursuant to the PCAC and upon the waiver of oral hearing by the parties, was resolved by documentary procedure, where the parties submitted pleadings, a report, sworn statements, opening statements, and briefs. Pacific sought reparation in connection with eight truckloads of tomatoes it shipped to plaintiff for price adjustments granted totaling $38,000. The Secretary granted judgment in favor of Pacific after finding that the agreed upon price reductions were voidable based upon misrepresentation and mistake. Central to the Secertary's decision was the fact that both Spinale, an employee with plaintiff, and eight USDA inspectors pled guilty to indictments alleging bribery stemming from operation OFF and during the time period that the price adjustments at issue were agreed upon. The Secretary imputed knowledge of the bribery scandal to plaintiff and thereafter concluded that failure to disclose the ongoing bribery was basis for setting aside the agreed upon price adjustments.
FFVA submits a copy of a decision issued by the SDNY in a case titled Tray-Wrap, Inc. v. Meyer Tomatoes. Said decision sets the amount of fees and costs to be awarded to the defendant in that action and reduces the amount awarded from what was initially claimed. That action involved similar facts and circumstances in that the plaintiff in this action was the subject of a reparation action by the defendant therein. Plaintiff lost at every level and ultimately had to pay a portion of said defendant's legal fees.
FFVA submits a letter from the SDNY dated March 21, 2001, wherein the court states that Spinale pled guilty to one count of bribing a public official in relation to case number 99 CR 1093. FFVA submits a copy of the SDNY docket evincing the criminal action against Spinale. FFVA submits a copy of the indictment against Spinale. Said indictment alleges that Spinale engaged in bribery of a public official. The indictment alleges that on nine separate days in 1999, Spinale, while in the employment of plaintiff and G T Terminal Packaging Corp. (G T), bribed USDA inspectors to influence the outcome of fresh fruit and vegetable inspections at the Market.
FFVA submits all the decisions evincing the procedural history in the actions between Koam and DiMare. The first decision grants judgment in favor of DiMare in a reparation action brought pursuant to the PACA. The facts are similar to the facts in the reparation action brought by Pacific against plaintiff and judgment in favor of DiMare, the shipper was granted summary judgement for the same reasons cited in Pacific's reparation action. The second decision is related to Koam's subsequent appeal to the SDNY who affirmed the Secretary's finding. The third decision is related to Koam's subsequent appeal wherein the SDNY's decision was affirmed. The fourth decision relates to DiMare's application to recover legal fees incurred in connection with the actions just discussed. The SDNY awarded DiMare legal fees and costs totaling less than the amount requested.
FFVA submits a copy of a decision issued by the Secretary dated September 8, 2005, wherein he granted judgment in favor of the USDA in an action brought by them seeking to revoke plaintiff and G T's PACA license for a host of reasons, all of which are related to Spinale's involvement in OFF, the indictments that stemmed therefrom and Spinale's subsequent guilty plea. The Secretary concluded that due to Spinale's involvement in OFF, he, plaintiff and G T violated 7 U.S.C. § 499b(4), which prohibits unfair conduct. FFVA submits a copy of a Second Circuit Court of Appeals where the Court upheld the Secretary's decision revoking plaintiff and G T's license.
FFVA submits a copy of a decision in a case titled G T Terminal Packaging Co. v. Western Growers Association. That action was substantially similar to the instant action and by virtue of the decision provided has been dismissed by JSC Williams, who sits in this very court. That action was one for malicious prosecution, abuse of process and fraud. That action was based upon a reparation action instituted by defendants against the plaintiffs, one of which is the plaintiff in the within action. Said action stemmed from price adjustments granted to plaintiffs, which as a result of OFF, defendants argued were fraudulently obtained. After losing the reparation action, the plaintiffs appealed to the SDNY and after considering the cost of continued litigation versus the potential of not recovering all legal fees, defendants discontinued the action. The court granted summary judgment to defendant finding the existence of probable cause to bring the underlying reparation action. The court also granted defendant attorney fees and costs.
FFVA submits a portion of Spinale's deposition transcript, wherein he stated that he was convicted based on the indictment.
In opposition to the instant motion, plaintiff submits an affidavit from Spinale wherein he states, in pertinent part, the following. On June 22, 2001, FFVA, on behalf of Pacific, brought a reparation action against the plaintiff before the USDA pursuant to the PACA. The action was preceded by an informal complaint filed by letter on March 27, 2000. When the informal complaint was filed, Spinale had not yet been convicted of bribery and had merely been indicted for the same. Although Spinale pled guilty to one count of bribery of public official, he did so on poor advise of counsel, insofar as he was a victim of soft extortion. The count to which Spinale pled guilty was count 9 of the indictment which involved a load of potatoes sold to G T. That count did not involve the plaintiff. Attempts to appeal Spinale's guilty plea proved fruitless insofar as the statute of limitations had expired.
This appears to be error since all other documents, including Spinale's own affidavit, evince that the action was commenced in April 2001.
With regard to the reparation action, by a decision rendered by the Secretary, the same was decided in Pacific's favor. On March 1, 2002, plaintiff filed a petition in the SDNY appealing the Secretary's determination and on March 19, 2003, plaintiff and Pacific executed a stipulation dismissing the action. On March 30, 203, Pacific contacted the PACA indicating that Pacific would be dismissing its complaint. Pacific thereafter contacted plaintiff apprising it of the same. On March 25, 2004, Pacific made a motion before the SDNY seeking an Order setting aside the dismissal of the action. Said motion was denied.
Subsequent thereto, the USDA commenced a license revocation proceeding against the plaintiff and G T in order to revoke their much needed PACA licenses. William B. Moran (Moran), an administrative law judge rendered a decision siding with plaintiff and G T, thereby dismissing the license revocation action. Moran concluded that the USDA had not met its burden and further stated that with regard to Spinale's guilty plea, the same was not tantamount to an actual finding of guilt. Moran also concluded that the record was bereft of evidence indicating an occasion where Spinale participated in an inspection of produce wherein the produce was downgraded to make it look worse than it actually was.
Spinale avers that the instant action was commenced absent probable cause because neither Pacific nor FFVA conducted an investigation to verify whether plaintiff had indeed defrauded them prior to initiation of the instant action. Neither Sandy Scahuberger, Pacific's employee, or Bess undertook an investigation. The USDA had advised shippers who felt that they might have been defrauded to compare downgraded loads shipped to the Market with loads shipped elsewhere to see if other loads, shipped elsewhere had been downgraded. Pacific and FFVA commenced the proceeding solely to obtain an easy money judgment. Spinale further avers that the instant action terminated favorably in plaintiff's favor and that there was no basis for dismissing the action but for a realization that Pacific and FFVA had no basis for commencing the reparation action. As a result of the reparation action, plaintiff suffered a loss in business and damage to its reputation.
Plaintiff submits an affidavit from Mazie Faraci (Faraci) who states, in pertinent part, as follows. Faraci is owner and general manager of plaintiff. He reiterates much of what Spinale stated.
Plaintiff submits a copy of a decision titled United States Department of Agriculture v. G T Terminal Packaging Company, Inc. Said decision is dated March 28, 2005 dismisses the USDA's license revocation proceeding against plaintiff and G T. Moran, who issued the decision concludes that the USDA had not demonstrated that plaintiff and G T had violated 7 U.S.C. 499b(4). In essence, Moran concludes that although Spinale pled guilty to charges of bribing a public official, there was no evidence that plaintiff and G T were guilty of the same.
Plaintiff provides a portion of a transcript wherein a senior marketing analyst with the USDA testified, in pertinent part, as follows. It was his opinion that to the extent that USDA inspectors altered reports at the USDA's direction, the same affected the integrity of the USDA.
Plaintiff submits very limited portions of several transcripts. The transcripts are limited and disjointed so much, that at times it's hard to even summarize the same. Accordingly, the Court's summary may appear disjointed. However, it is merely reflective of what was provided.
Plaintiff provides a portion of a transcript wherein, Cashin, testified in pertinent part, as follows. With regard to an inspection regarding a load of potatoes, the same was accurate.
Plaintiff provides a portion of Shandy Schauberger's (Schauberger) deposition transcript wherein she testified, in pertinent part, as follows. She was employed by Pacific and as a result of the bribery scandal was asked to provide certain information to Bess in order to initiate a reparation action. She was asked to search Pacific's records and pull any documents evincing price adjustments allowed by Pacific to customers at the Market between 1999-2000. Schauberger was not asked to compare loads shipped to other parts of the country for the same time period.
Plaintiff provides a portion of Joey Poklemba's (Poklemba) deposition transcript wherein he testified, in pertinent part, as follows. Poklemba sold tomatoes to plaintiff on behalf of Pacific. He was involved in the filing of the reparation action insofar as he reviewed all invoices and flagged those where plaintiff had been given downward price adjustments. Poklemba assumed that any price adjustments given to plaintiff were a mistake based upon Spinale's guilty plea to bribery charges. With regard to the reparation claim, a decision as to which loads to challenge depended on whether the inspectors who had inspected the same were involved in the bribery scandal. Plaintiff and Pacific continued to do business after the scandal. Plaintiff submits an affidavit from Poklemba, wherein he reiterates what he testified to.
Plaintiff provides a portion of Bess' deposition transcript wherein he testified as follows. He filed a reparation action on behalf of Pacific with their consent. He had been informed of the bribery scandal at the Market via letter and was also informed about the reparation action as a remedy for shippers if they believed that they granted fraudulent price adjustments. Based on the scandal Bess advised Pacific to review their records to see if anyone they shipped to at the market had been implicated and to see if any price adjustments had been given to the same based on inspections performed by inspectors also involved in the scandal. Bess did not conduct any investigation prior to initiating the reparation action against plaintiff but did advise Pacific to review their records for loads shipped to the market and compare them with loads sent elsewhere. The reparation action was commenced based on the fact that Pacific's records evinced price adjustments on loads shipped to plaintiff, which was implicated in the scandal based upon inspections performed by inspectors also involved in the scandal.
Plaintiff provides a copy of the Secrtary's decision awarding judgment in Pacific's favor already provided by FFVA as well as a petition of appeal it filed regarding the same. Plaintiff provides a stipulation between itself and Pacific dated March 19, 2003. Within said stipulation Pacific agrees to dismiss the complaint in the reparation action and plaintiff agrees to dismiss its appeal. Plaintiff provides a copy of an application submitted by Pacific seeking to set aside the stipulation of settlement. Plaintiff also submits a decision issued by Justice Denny Chin (Chin) of the SDNY wherein he denied Pacific's application finding no undue hardship or misrepresentation.
Plaintiff provides a copy of this Court's Order wherein the deadline to make motions for summary judgment was set to July 17, 2006. Plaintiff submits a copy of this Court's Order denying FFVA's initial motion for the instant relief insofar as it had neglected to annex the pleadings. The denial was without prejudice.
Timeliness of Summary Judgement Motions
CPLR § 3212(a) prescribes the time within which summary judgement motions may be made. It states that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown (emphasis added).
Absent a showing of "good cause" for the delay in timely filing a motion for summary judgment, the Court will not consider such a motion on the merits and will instead decline to hear the motion outright. Brill v. City of New York , 2 NY3d 648 (2004); Glasser v. Ibramovitz, 37 AD3d 194 (1st Dept. 2007); Rocky Point Drive-In, L.P. v. Town of Brookhaven ,37 AD3d 805 (2nd Dept. 2007). The fact that the motion has merit, that the cause of action is meritless, that summary judgment is in the interest of judicial economy, or that the opponent will not be prejudiced by the Court's consideration of the motion, shall not, absent a showing of "good cause," be sufficient grounds for the Court to hear such a motion. Id. This is because "statutory time frames like court-ordered time frames are not options, they are requirements, to be taken seriously. Miceli v. State Farm Mutual Automobile Insurance Company, 3 NY3d 725 (2004).
The Court of Appeals has defined "good cause" to mean a good excuse for the delay in filing the motion, a satisfactory explanation for the delay. Brill v. City of New York , 2 NY3d 648 (2004). Further, it has been held that [g]ood cause is written expression or explanation by the party or his legal representative evincing a viable, credible reason for the delay, which, when viewed objectively, warrants a departure or exception to the timeliness requirement.
Bruno Suace v. Diane Lostrappo, 176 Misc 2d 498 (Supreme Court Nassau County 1998). Ultimately, what constitutes "good cause" has less to do with the merits of the actual motion and more to do with reason for the untimeliness. Luciano v. Apple Maintenance Services, Inc., 289 AD2d 90 (1st Dept. 2001). The Court is always within its discretion to hear a summary judgment motion regardless of the time delay in filing the same. Id. The salient issue is always the nature of the excuse proffered for the delay. Id.
The "good cause" requirement not only applies to any motions made beyond the 120 days prescribed by the CPLR, but also applies to any court-ordered time frames which are set by the court, even if they are shorter. Cabibel v. XYZ Associates, L.P. , 36 AD3d 498 (1st Dept. 2007); Eastman Bixby Redevelopment Co., LLC., 34 AD3d 770 (2nd Dept. 2006).
An exception to the "good cause" requirement authorizes the court to consider a belated application for summary judgment when the same is made in response to still pending motions for summary judgment and when the belated cross-motion seeks relief on the very issues raised by the timely motions. Filannino v. Triborough Bridge and Tunnel Authority , 34 AD3d 280 (1st Dept. 2006); Altshuler v. Gramatan Management, Inc., 27 AD3d 304 (1st Dept. 2006); Bressingham v. Jamaica Hospital Medical Center, 17 AD3d 496 (2nd Dept. 2005). The threshold issue is not whether the same relief is sought, but whether the same arguments are made and more importantly whether the same issues are addressed. Filannino v. Triborough Bridge and Tunnel Authority , 34 AD3d 280 (1st Dept. 2006); Altshuler v. Gramatan Management, Inc., 27 AD3d 304 (1st Dept. 2006).
Summary Judgment
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently, any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 161 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993).
Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must loose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to warrant or defeat summary judgement. Gilbert Frank Corp. v. Federal Insurance Company, 70 NY2d 966 (1988); Zuckerman v. City of New York, 49 NY2d 1065 (1979).
It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated [t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted). Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Thus, while evidence inadmissible when the motion is made and inadmissible when the case is tried, is insufficient to raise an issue of a fact precluding summary judgment; inadmissible evidence, whose inadmissability has been excused and which may likely be admissible at trial, may be considered. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972). In Phillips, for example, the court discussed that in lieu of affidavits from actual witnesses, detailing the substance of their testimony, affidavits listing witnesses' names, the substance of their testimony, and how said witnesses acquired their knowledge, could be considered and could raise an issue of fact sufficient to defeat summary judgment. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witnesses testimony and that witnesses' testimony created an issue of fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991).
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):
[s]upreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial. (Internal citations omitted)
See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).
Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).
Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).
A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano ,16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).
It is well settled that on a motion for summary judgment, the court can take judicial notice of any and all undisputed court records and files. Khatibi v. Weill, 8 AD3d (2nd Dept. 485). This includes the court's own court files but it extends to related proceedings in other courts. MJD Construction, Inc. v. Woodstock Lawn Home Maintenance, 299 AD2d 459 (2nd Dept. 2002); See also, Warner v. Board of Education of the City of New York, 14 AD2d 300 (1st Dept. 1961); George v. Time, Inc., 259 A.D. 324 (1st Dept. 1940); Allen v. Strough, 301 AD2d 11 (1st Dept. 2002); Ptasznick v. Schultz, 247 AD2d 197 (2nd Dept. 1998).
Malicious Prosecution
The tort of malicious prosecution provides protection from and provides redress for the initiation of unjustifiable litigation. Broughton v. State of New York, 37 AD2d 451 (1975). However, since public policy favors bringing criminals to justice the system must afford accusers room for benign misjudgments. Smith-Hunter v. Harvey, 95 NY2d 191 (2000). This fosters the long standing belief that the court system is open to all without fear of reprisal by way of retaliatory lawsuits. Curiano v. Suozzi, 63 NY2d 113 (1984). It is precisely for this reason that a plaintiff asserting a cause of action for malicious prosecution must satisfy a heavy burden. Id.; Smith-Hunter v. Harvey, 95 NY2d 191 (2000). The essence of a cause of action for malicious prosecution is the perversion of proper legal procedures. Broughton v. State of New York, 37 AD2d 451 (1975); Boose v. City of Rochester, 71 AD2d 59 (4th Dept. 1979). As such, a prior judicial proceeding is the sina qua non, or pre-requisite of said cause of action. Id.
Simply stated, a cause of action for malicious prosecution is one where it is alleged that a legal proceeding was maliciously initiated "without probable cause for doing so which finally ends in failure." Curiano v. Suozzi, 63 NY2d 113, 118 (1984). An action for malicious prosecution can be asserted based on prior civil or criminal action. When the action is premised upon a prior criminal proceeding, the elements of the cause of action, all of which are required for recovery, are (1) the commencement or continuation of a prior criminal proceeding by the defendant; (2) the termination of the prior proceeding in favor of the plaintiff; (3) the absence of probable cause for the initiation of the prior criminal proceeding; and (4) actual malice. Cantalino v. Danner, 96 NY2d 391 (2001); Smith-Hunter v. Harvey, 95 NY2d 191 (2000); Colon v. City of New York, 60 NY2d 78 (1983); Martin v. City of Albany, 42 NY2d 13 (1977); Broughton v. State of New York, 37 AD2d 451 (1975); Heany v. Purdy, 29 NY2d 157 (1971); Munoz v. City of New York, 18 NY2d 6 (1966); Loeb v. Teitelbaum, 77 AD2d 92 (2nd Dept. 1980); Boose v. City of Rochester, 71 AD2d 59 (4th Dept. 1979); Pagliarulo v. Pagliarulo, 30 AD2d 840 (1968). The elements for a malicious prosecution cause of action based upon a prior civil action are identical except that in addition to the foregoing, it must be proven that plaintiff sustained special damage or injury. The Purdue Frederick Company v. Steadfast Insurance Company, 40 AD3d 285 (1st Dept. 2007); Wilhelmina Models, Inc. v. Fleischer ,19 AD3d 267 (1st Dept. 2005); Honzawa v. Honzawa, 268 AD2d 327 (1st Dept. 2000); Black v. Green Harbour Homeowners' Association, Inc. ,37 AD3d 1013 (3rd Dept. 2007); Fink v. Shawangunk Conservatory, inc., 15 AD3d 754 (3rd Dept. 2005). Some cases hold that the special injury requirement means that the prior action interfered with plaintiff's person or property. Williams v. Williams, 23 NY2d 592 (1969); The Purdue Frederick Company v. Steadfast Insurance Company, 40 AD3d 285 (1st Dept. 2007); Wilhelmina Models, Inc. v. Fleischer , 19 AD3d 267 (1st Dept. 2005); Honzawa v. Honzawa, 268 AD2d 327 (1st Dept. 2000); Tsafatinos v. Ward, 177 Misc 2d 590 (Civil Court, Kings County 1998); Rappaport v. Rappaport, 44 Misc 2d 523 (Supreme Court, New York County 1964). Other cases hold that the special injury requirement means that the prior action resulted in a provisional remedy, such as arrest, attachment or injunction, which interfered with the plaintiff's person or property. Belsky v. Lowenthal, 62 AD2d 319 (1st Dept. 1978); Sachs v. Weinstein, 208 AD2d 360 (1st Dept. 1924); Felske v. Bernstein, 173 AD2d 677 (2nd Dept. 1991); Ellman v. McCarty, 70 AD2d 150 (2nd Dept. 1979); Louis J. Sigl, Inc. v. Bresnahan, 216 A.D. 634 (4th Dept. 1926); Freedman v. Freedman, 82 NYS2d 415 (Supreme Court, Bronx County 1948). Notwithstanding the foregoing, the Court of Appeals has concluded that with regard to the interference element, no provisional remedy is required to satisfy said element and all that is required is proof of "concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit." Engel v. CBS, Inc., 93 NY2d 195 (1999). In Engel, the court held that while highly substantial and identifiable inference with person, property, or business would suffice, for purposes of special injuries, plaintiff's allegation that the underlying civil action against him caused a conflict of interest and increased the burden of representation did not rise to the level of special injury. Id. On this issue, it has been held that discharge from work and the withholding of pay constitute a special injury. Groat v. Town Board of the Town of Glenville, 73 AD2d 426 (3rd Dept. 1980); Fulton v. Ingalls, 165 A.D. 323 (2nd Dept. 1914)
A prior judicial proceeding is an essential element of any malicious prosecution action. However, not all proceedings are considered judicial proceedings for purposes of said cause of action. In order to satisfy this element of a malicious prosecution action, the prior proceeding must have all the hallmarks of a judicial proceeding. Groat v. Town Board of the Town of Glenville, 73 AD2d 426 (3rd Dept. 1980); Fulton v. Ingalls, 165 A.D. 323 (2nd Dept. 1914); Glenn v. State of New York, 144 Misc 2d 101 (Court of Claims 1989); Treacy v. State of New York, 131 Misc 2d 849 (Court of Claims 1986). A prior proceeding has all the attributes of a judicial proceeding if it requires "a hearing and trial of issues on evidence and testimony under oath, with the right of cross-examination." Groat v. Town Board of the Town of Glenville, 73 AD2d 426, 428 (3rd Dept. 1980). Accordingly administrative hearings which possess these attributes are deemed judicial proceedings, Groat v. Town Board of the Town of Glenville, 73 AD2d 426 (3rd Dept. 1980); Fulton v. Ingalls, 165 A.D. 323 (2nd Dept. 1914); Glenn v. State of New York, 144 Misc 2d 101 (Court of Claims 1989); Glenn v. State of New York, 144 Misc 2d 101 (Court of Claims 1989). In Groat v. Town Board of the Town of Glenville, 73 AD2d 426 (3rd Dept. 1980), the court held that an administrative proceeding against a police officer by the Town Board, which involved a hearing and trial, was a judicial proceeding for purposes of a malicious prosecution action. In Glenn v. State of New York, 144 Misc 2d 101 (Court of Claims 1989), the court held that Department of Motor Vehicle trials, related to traffic violations, are judicial proceedings for malicious prosecution purposes since there is evidence requirements, testimony under oath and a right to cross-examination.
Whether an action is terminated favorably so as to give rise to a cause of action for malicious prosecution depends on how the action was terminated. In Levy's Store, Inc. v. Endicott-Johnson Corporation, 272 NY 155 (1936) the court confronted with this very issue stated
It is true that where a proceeding has been determined in favor of the accused by judicial action of the proper court or official in any way involving the merits or propriety of the proceeding or by a dismissal or discontinuance based on some act chargeable to the complainant, as his consent or his withdrawal or abandonment of his prosecution, a foundation in this respect has been laid for an action of malicious prosecution. Where, however, the proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties or solely by the procurement of the accused as a matter of favor or as the result of some act, trick or device preventing action and consideration by the court, there is no such termination as may be availed of for the purpose of such an action. The underlying distinction which leads to these different rules is apparent. In one case, the termination of the proceeding is of such a character as establishes or fairly implies lack of a reasonable ground for the prosecution. In the other case, no such implication reasonably follows.
Id. at 162; See also, Loeb v. Teitelbaum, 77 AD2d 92 (2nd Dept. 1980). Thus, a favorable termination on the merits and in favor of the accused or defendant in the prior action, since it implies lack of probable cause, satisfies the element of favorable termination in a cause of action for malicious prosecution. Id. However, a termination chargeable to the plaintiff or complainant in the prior action, such as settlement, withdrawal or discontinuance, is not deemed a favorable termination for purposes of an action for malicious prosecution. Id. In Pagliarulo v. Pagliarulo, 30 AD2d 840 (2nd Dept. 1968), the court held plaintiff's agreement to discontinue a prior action served to bar the malicious prosecution action insofar as discontinuance of the prior action against the plaintiff was not a favorable termination. The courts in Aquilina v. O'Connor, 59 AD2d 454 (3rd Dept. 1977) and Louis J. Sigl, Inc. v. Brsnahan, 216 A.D.634 (4th Dept. 1926), facing what some might call similar circumstances came to the same conclusion. In those cases the courts held that discontinuance by plaintiff in a prior action upon which an action for malicious prosecution is premised was a favorable termination when and if the evidence demonstrated that the discontinuance was not induced by the defendant in the prior action or was the result of a compromise. Id.
Probable cause means facts and circumstances which would lead a reasonably prudent person in similar circumstances to conclude that plaintiff is guilty of the acts alleged. Colon v. City of New York, 60 NY2d 78 (1983); Munoz v. City of New York, 18 NY2d 6 (1966); Fink v. Shawangunk Conservatory, inc., 15 AD3d 754 (3rd Dept. 2005); Boose v. City of Rochester, 71 AD2d 59 (4th Dept. 1979). Whether there was probable cause to initiate a prosecution is ascertained by evaluating defendant's conduct at the time he/she commenced the prior proceeding and assessing whether the facts available would have lead a reasonably prudent person to initiate the prior proceeding. Levy's Store, Inc. v. Endicott-Johnson Corporation, 272 NY 155 (1936); Loeb v. Teitelbaum, 77 AD2d 92 (2nd Dept. 1980); Kezer v. Dwelle-Kaiser Company, 222 A.D. 350 (4th Dept. 1927). When the facts regarding the existence of probable cause and the inferences to be drawn therefrom are undisputed, the existence of probable cause can be decided as a matter of law. Parkin v. Cornell University, Inc., 78 NY2d 523 (1991); Lundgren v. Margini ,30 AD3d 476 (2nd Dept. 2006). A judicial determination in the prior action such as an adverse judgment to plaintiff, a conviction of the same, or a recognition of the potential merit of defendant's prior action is either prima facie evidence of probable cause to initiate the prior proceeding or conclusive evidence of the same and said presumption is not overcome by subsequent reversal or setting aside of the judgment. I.G. Second Generation Partners, L.P. v. Duane Reade , 17 AD3d 206 (1st Dept. 2005); Crown Wisteria, Inc. v. F.G.F. Enterprises Corp., 168 AD2d 238 (1st Dept. 1990); Fink v. Shawangunk Conservatory, Inc. , 15 AD3d 754 (3rd Dept. 2005); Malin v. Deutsch Frey, 142 AD2d 632 (2nd Dept. 1988); Simmonds v. Sowers, 253 A.D. 819 (2nd Dept. 1938); Mesnier v. Denike, 82 A.D. 404 (2nd Dept. 1903); Goldner-Siegel Corporation v. Kramer Hoisery Company, 153 Misc. 159 (Supreme Court, New York County 1934). Generally the presumption of probable cause established by a prior conviction, indictment, or the issuance of a judgment adverse to the plaintiff now asserting a cause of action for malicious prosecution remains in effect unless it is proven that the same was obtained by fraud, misrepresentation, perjury, or undue means. I.G. Second Generation Partners, L.P. v. Duane Reade , 17 AD3d 206 (1st Dept. 2005); Simmonds v. Sowers, 253 A.D. 819 (2nd Dept. 1938); Mesnier v. Denike, 82 A.D. 404 (2nd Dept. 1903); Goldner-Siegel Corporation v. Kramer Hosiery Company, 153 Misc. 159 (Supreme Court, New York County 1934).
Malice, as it relates to a malicious prosecution action is conscious falsity. Munoz v. City of New York, 18 NY2d 6 (1966); Wilhelmina v. Fleisher , 19 AD3d 267 (1st Dept. 2005); Williams v. Pinks, Feldman Brooks, 141 AD2d 723 (2nd Dept. 1988). Malice is the initiation of a proceeding for spite, hatred, or "due to wrong or improper motive, something other than a desire to see the ends of justice served." Nardelli v. Stamberg, 44 NY2d 500, 503 (1978); Boose v. City of Rochester, 71 AD2d 59 (4th Dept. 1979).
Abuse of Process
An action alleging abuse of process is one where the plaintiff seeks compensation for the improper use of process after the same has been issued. Curiano v. Suozzi, 63 NY2d 113 (1984); Williams v. Williams, 23 NY2d 592 (1969); Hauser v. Bartow, 273 NY 370 (1937); Dean Kochendorfer, 237 NY 384 (1924); Pagliarulo v. Pagliarulo, 30 AD2d 840 (2nd Dept. 1968); Rappaport v. Rappaport, 44 Misc 2d 523 (Supreme Court, New York County 1964). Process is a "direction or demand that the person to whom it is directed shall perform or refrain from the doing of some prescribed act." Williams v. Williams, 23 NY2d 592, 596 (1969). The gravamen of an abuse of process claim is the perversion of process, lawfully issued, to accomplish a purpose not consonant with the nature of the process employed. Board of Education of Farmingdale Union Free School District v. Farmingdale Classroom Teachers Association, Inc., 38 NY2d 397 (1975). To the extent that public policy mandates open access to the courts for the redress of wrongs while concomitantly penalizing those who manipulate proper legal process to achieve a collateral advantage, a cause of action for abuse of process lies not for the commencement of an action but for the perversion of the process after it is commenced. Id.; Pagliarulo v. Pagliarulo, 30 AD2d 840 (2nd Dept. 1968).
In order to prevail on a cause of action for abuse of process it must be demonstrated that defendant (1) caused the issuance of regularly issued process either criminal or civil; (2) with the intent to do harm without excuse or justification; and (3) that the process was perverted to obtain a collateral advantage. Curiano v. Suozzi, 63 NY2d 113 (1984); Board of Education of Farmingdale Union Free School District v. Farmingdale Classroom Teachers Association, Inc., 38 NY2d 397 (1975); Panish v. Steinberg , 32 AD3d 383 (2nd Dept. 2006); Felske v. Bernstein, 173 AD2d 677 (2nd Dept. 1991); Tsafatinos v. Ward, 177 Misc 2d 590 (Civil Court, Kings County 1998). In addition, it must also be demonstrated that the process unlawfully interfered with plaintiff's person or property. Curiano v. Suozzi, 63 NY2d 113 (1984); Williams v. Williams, 23 NY2d 592 (1969); Hauser v. Bartow, 273 NY 370 (1937); Walentas v. Johnes, 257 AD2d 352 (1st Dept. 1999). Actions generally giving rise to an abuse of process claim, by virtue of their interference with person and property, are actions for attachment, execution, garnishment, sequestration, arrest, criminal prosecution, and the issuance of a subpoena. Williams v. Williams, 23 NY2d 592 (1969); Hauser v. Bartow, 273 NY 370 (1937).
The commencement of an action even if commenced for malicious motives does not by itself give rise to a cause of action for abuse of process. Curiano v. Suozzi, 63 NY2d 113 (1984); Hauser v. Bartow, 273 NY 370 (1937); Syllman v. Nissan , 18 AD3d 221 (1st Dept. 2005); I.G. Second Generation Partners, L.P. v. Duane Reade , 17 AD3d 206 (1st Dept. 2005); Walentas v. Johnes, 257 AD2d 352 (1st Dept. 1999); Solomon v. Barr, 168 Misc. 439 (Supreme Court, New York County 1938). This reason being that
[t]he action is not for the wrongful bringing of an action or prosecution, but for the improper use, or rather, abuse of process in connection therewith — as the Pennsylvania court has aptly put it, for a perversion of legal process. The process of law must be used improperly and this means something more than a proper use from a bad motive. If the process is employed from a bad or ulterior motive, the gist of the wrong is to be found in the uses which the party procuring the process to issue attempts to put it. If he is content to use the particular machinery of the law for the immediate purpose for which it was intended, he is not ordinarily liable, notwithstanding a vicious or vindictive motive. But the moment he attempts to attain some collateral objective, outside the scope of the operation of the process employed, a tort has been consummated. The tortious character of the defendant's conduct consists of his attempt to employ a legitimate process for a legitimate purpose in an improper manner, and this point must be clearly shown by the plaintiff to entitle him to maintain his action. (Internal citations omitted).
Hauser v. Bartow, 273 NY 370, 373-374 (1937). Thus, it is well settled that the commencement of a civil action by way of summons and complaint does not by itself give rise to an action for abuse of process insofar as said process is not process capable of being abused. Curiano v. Suozzi, 63 NY2d 113 (1984); Syllman v. Nissan , 18 AD3d 221 (1st Dept. 2005); I.G. Second Generation Partners, L.P. v. Duane Reade , 17 AD3d 206 (1st Dept. 2005).
In Board of Education of Farmingdale Union Free School District v. Farmingdale Classroom Teachers Association, Inc., 38 NY2d 397 (1975), the court found that by using subpoenas to harass the plaintiff rather than to obtain the appearance of witnesses, the defendant had perverted lawful process to obtain a collateral objective and as such had established that defendant had abused the legal process. In I.G. Second Generation Partners, L.P., 17 AD3d 206 (1st Dept. 2005), the court concluded that no cause of action for abuse of process existed, when the defendant's prior action for declaratory judgment was prosecuted as a means to obtain possession of real property. The court concluded that said relief was appropriate and not collateral to their objective of securing an exclusive right to posses the premises at issue. Id. The court in 71 Pierrepont Associates v. 71 Pierrepont Corp., 243 AD2d 625 (2nd Dept. 1997) came to a similar conclusion and held that no cause of action for abuse of process existed when defendant's prior action seeking to set aside a deed was motivated by economic self interest.
Fraud, Misrepresentation, and Breach of Fiduciary Duty
A cause of action for fraud or misrepresentation requires allegations of representation of an existing fact, falsity, scienter, justifiable reliance and damages. Callas v. Eisenberg, 192 AD2d 349 (1st Dept. 1993); Bramex Associates, Inc. v. CBI Agencies, Ltd., 149 AD2d 383 (1st Dept. 1989). In addition, to maintain such a cause of action it is required that plaintiff establish that he reasonably believed that the representation made was true and that justified action was taken as a result thereof. LoGalbo v. Plishkin, Rubano Baum, 197 AD2d 675 (2nd Dept. 1993); Verschell v. Pike, 85 AD2d 690 (2nd Dept. 1981). Where fraud or breach of trust or fiduciary duty is alleged, the CPLR mandates that said causes of action be plead with detail. CPLR § 3016(b) reads
Fraud or mistake. Where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail.
Thus, a cause of action for fraud must be pled with specificity and a failure to do so mandates dismissal. Griffith v. Medical Quadrangle, Inc., 5 AD2d 151 (1st Dept. 2004); Gall v. Summit, Rovins, and Feldesman, 222 AD2d 225 (1st Dept. 1995); Callas v. Eisenberg, 192 AD2d 349 (1st Dept. 1993); Bramex Associates, Inc. v. CBI Agencies, Ltd., 149 AD2d 383 (1st Dept. 1989); Levine v. K. Gimbel Accessories, Inc., 41 AD2d 637 (1st Dept. 1973); DeFalco v. Cutaia, 236 AD2d 358 (2nd Dept. 1997); Mountain Lion Baseball, Inc. v. Gainman, 263 AD2d 636 (3rd Dept. 1999); Lanzi v. Brooks, 54 AD2d 1057 (3rd Dept. 1976). In Modell's NY, Inc v. Noodle Kidoodle, Inc., 242 AD2d 248 (1st Dept. 1997), the court dismissed plaintiff's claim of fraud when it failed to comply with CPLR § 3016(b), in that the complaint offered no facts demonstrating reliance and offered a conclusory allegation of intentional misrepresentation. Similarly in Wint v. ABN AMRO Mortgage Group, Inc. , 19 AD3d 588 (2nd Dept. 2005) the court dismissed plaintiff's complaint when it failed to plead fraud with sufficient specificity in that the same failed to allege any material misrepresentation and/or material omission defendant knew to be false.
A cause of action for breach of fiduciary duty is subject to the same stringent pleading requirements. Gall v. Summit, Rovins, and Feldesman, 222 AD2d 225 (1st Dept. 1995). Failure to plead that the defendant acted with deceitful intent, mandates dismissal of a cause of action for breach of fiduciary duty. Horn v. 440 East 57th Company, 151 AD2d 112 (1st Dept. 1989).
Attorney's Fees and Costs
Generally, in the absence of an agreement, contract, or statute, a party involved in litigation is responsible for all legal fees and costs incurred in the defense or prosecution of the action and cannot recover the same from an opposing party. Hooper Associates, Ltd. V. AGS Computers, Inc., 74 NY2d 487 (1989); Chapel v. Mitchell, 84 NY2d 345 (1994). When the moving party is entitled to recover legal expenses and tenders proof of the reasonableness of the expenses incurred, absent a challenge regarding the reasonableness of said expenses, the moving party is entitled to the amount sought. Gray Manufacturing Company v. Pathe Industries, Inc., 33 AD2d 739 (1st Dept. 1969). If the reasonableness of the legal fees claimed is challenged, the court will conduct a hearing on that issue. Tishman Construction Corp. of New York v. American Manufacturers Insurance Company, 303 AD2d 323 (1st Dept. 2003). Notwithstanding, a contract entitling a party to legal fees, it is well settled, that such relief is only available to the prevailing party, provided the same prevails on a central issue. Nestor v. McDowell, 81 NY2d 410 (1993); 490 Owners Corp. v. Israel, 189 Misc 2d 34 (Appellate Term 2nd Dept. 2001).
Reply Papers
Generally arguments proffered for the first time within reply papers shall not be considered by the court. Wal-Mart Stores, Inc., v. United States Fidelity and Guaranty Company, 11 AD3d 300 (1st Dept. 2004); Johnston v. Continental Broker-Dealer Corp., 287 AD2d 546 (1st Dept. 2001); Dannasch v. Bifulco, 184 AD2d 415 (1st Dept. 1992). This is because the purpose of reply papers is to address the arguments made by the opponent in response to movant's motion and the opponent generally has no opportunity to respond to any newly raised arguments absent leave of court. Id. However, a review of the cases indicates that, the prohibition is meant to address cases where the reply papers seek to introduce new evidence to cure deficiencies in the moving papers. Migdol v. City of New York, 291 AD2d 201 (1st Dept. 2002) (Court rejected affidavit submitted with reply papers since it sought to remedy deficiencies in original motion rather than respond to arguments made by opponent.); Lumbermens Mutual Casualty Company v. Morse Shoe Company, 218 AD2d 624 (1st Dept. 1995) (Court rejected defendant's reply papers which included two new documents provided to support a new assertion not previously made in initial motion.); Ritt v. Lenox Hill Hospital, 182 AD2d 560 (1st Dept. 1992) (Court rejected defendant's reply papers which contained a medical affidavit designed to cure the conclusory affidavit submitted with its initial motion). In Sanford v. 27-29 W. 181st Street Association Inc., 300 AD2d 250 (1st Dept. 2002), the court held that an affidavit submitted with movant's reply mandated consideration because it was not meant to cure a deficiency in the initial motion. The Court also reiterated that the law regarding reply papers excludes only those replies where the proponent of summary judgment seeks to "remedy a fundamental deficiency in the moving papers by submitting evidentiary material with the reply." Id. at 251.
Discussion
FFVA's motion seeking summary judgment over plaintiff in the instant action is hereby granted. Preliminarily, the Court notes that a review of the pleadings in the instant action evinces that plaintiff has failed to state a cause of action for malicious prosecution, abuse of process, and fraud. Similarly, FFVA has also failed to state the very same causes of action in its counterclaim. One need only look at the elements of the aforementioned causes of action, which have been adequately detailed above, and it becomes abundantly clear that the allegations within the pleadings fail to assert the same. Hence, were it not for legal obstacles precluding the same, the plaintiff's complaint and FFVA's counterclaim would fail pursuant to CPLR § 3211(a)(7), inasmuch as they fail to state a cause of action. Nevertheless, since the parties herein have chosen not to raise that issue and have instead chosen, by implication, to accept that the causes of action asserted by both plaintiff and FFVA sound in malicious prosecution, abuse of process, and fraud, the Court shall assume that said actions have been properly and adequately pled. Contrary to plaintiff's opposition, while the instant motion is technically, untimely, the Court finds good cause for the delay in making the instant application. Within this Court's so-ordered stipulation, the time within to make motions for summary judgment was extended through July 17, 2006. In compliance with the deadline set by the Court, FFVA initially moved for the instant relief on July 13, 2006, several days prior to expiration of the deadline set by the Court. On February 6, 2007, this Court denied FFVA's motion insofar as FFVA had failed to annex the pleadings to its moving papers. Said denial was without prejudice to renew and thereafter, on April 23, 2007, only a few weeks after the denial without prejudice, FFVA made the instant application. Based on the foregoing, this Court concludes that this Court's denial of FFVA's timely motion establishes the good cause for the delay in making the instant motion. Accordingly, the instant motion shall be decided on the merits.
With regard to the plaintiff's cause of action alleging malicious prosecution, it is well settled that in order to prevail on such a claim a plaintiff is obligated to prove each and every one of the elements comprising said cause of action. To the extent that the instant claim for malicious prosecution is premised upon a prior civil proceeding, plaintiff must prove: (1) the commencement or continuation of a prior proceeding by the defendant; (2) the termination of the prior proceeding in favor of the plaintiff; (3) the absence of probable cause for the initiation of the prior proceeding; (4) actual malice; and (5) special damage or injury. To the extent that plaintiff can only prevail if all elements are proven, it logically follows that a defendant need only establish the absence of one element to obtain summary judgment. In the instant action FFVA establishes the absence of several elements thereby establishing prima facie entitlement to summary judgment. While FFVA need only establish the absence of one of the elements, the Court shall discuss several elements negated by FFVA.
The evidence submitted by FFVA establishes that the proceeding upon which the instant action is premised does not qualify as a judicial proceeding for purposes of a malicious prosecution claim. A review of the evidence submitted, namely the Secretary's decision, evinces that the reparation proceeding herein is an administrative proceeding which was decided solely on the submission of papers and documents, where no testimony was taken and where no witnesses were examined. To the extent that it is well settled that a prior proceeding has all the attributes of a judicial proceeding if it requires a hearing and trial of issues on evidence, testimony under oath, with the right of cross-examination, the reparation proceeding herein does not meet the threshold.
FFVA further establishes that it had probable cause to initiate the proceeding. It is well settled that a judicial determination adverse to the plaintiff in the action forming the basis for a malicious prosecution action is either prima facie evidence of probable cause to initiate the prior proceeding or conclusive evidence of the same. Said presumption is not overcome by subsequent reversal and generally the presumption of probable cause established by said remains in effect unless it is proven that the same was obtained by fraud, misrepresentation, perjury, or undue means. In this case the evidence demonstrates that plaintiff lost the reparation action and as such, even though the same was subsequently dismissed, the presumption that there was probable cause to initiate the same remains. Accordingly, FFVA has established that it had probable cause to initiate the reparation action.
FFVA further establishes that the reparation action was not commenced with malice. Malice is the initiation of a proceeding for spite, hatred, or due to wrong or improper motive, something other than a desire to see the ends of justice served. In this action, Stuart establishes that the reparation action was commenced for legitimate purposes, namely to recover money which Pacific felt it was entitled to recover insofar as plaintiff had fraudulently obtained the same. Based on the foregoing, FFVA has established prima facie entitlement with regard to plaintiff's claim for malicious prosecution.
With regard to plaintiff's claim for abuse of process, FFVA has demonstrated prima facie entitlement to summary judgment. In order to prevail on a cause of action a plaintiff must demonstrate that defendant: (1) caused the issuance of regularly issued process either criminal or civil; (2) with the intent to do harm without excuse or justification; (3) that the process was perverted to obtain a collateral advantage; and (4) that the process unlawfully interfered with plaintiff's person or property. As discussed above, to the extent that plaintiff must prove all elements, a defendant obtains summary judgment if he negates the existence of any one of the elements.
FFVA has demonstrated prima facie entitlement to summary judgment insofar as it has demonstrated that the process herein, namely, the reparation action, was not perverted in any way so as to obtain a collateral advantage. Stuart establishes that the reparation action was commenced and prosecuted for a legitimate purpose, namely to recover money which Pacific felt it was entitled to recover insofar as plaintiff had fraudulently obtained the same. To the extent that the purpose of the reparation action was to recover money and the same was Pacific's goal, it cannot be said that the process was perverted to obtain a collateral advantage. Based on the foregoing, FFVA has demonstrated prima facie entitlement to summary judgment with regard to the abuse of process claim.
FFVA has demonstrated prima facie entitlement to summary judgment with regard to plaintiff's claim asserting fraud. It is worth noting that plaintiff never opposes this portion of FFVA's motion and as such, summary judgment is granted on default. Nevertheless it is well settled that a cause of action for fraud or misrepresentation requires proof that defendant misrepresented an existing fact, falsity, scienter, justifiable reliance by the plaintiff and damages. To the extent that as stated above, Stuart testified that the reparation action was commenced and prosecuted for a legitimate purpose, namely to recover money which Pacific felt it was entitled to recover insofar as plaintiff had fraudulently obtained the same.
The Court finds that FFVA's evidence demonstrates an absence of misrepresentation, falsity or scienter. As such, FFVA has established prima facie entitlement to summary judgment with regard to the cause of action for fraud.
Plaintiff's opposition fails to raise a triable issue of fact with regard to any of the causes of action asserted. In order to thwart summary judgment plaintiff must at the very least raise material issues of fact with regard to all elements of the causes of action negated by FFVA. With regard to the claim for malicious prosecution, FFVA established that the reparation proceeding at issue cannot serve as a basis for the instant action, that FFVA had probable cause to commence the same, and that it commenced the same without malice. Plaintiff has failed to raise triable issues of fact with regard to these elements. Nothing submitted by plaintiff controverts the fact that the underlying reparation proceeding was decided on documentary evidence and was bereft of any of the hallmarks of a trial or judicial proceeding. Plaintiff also fails to negate the existence of probable cause, which has been established by the Secretary's decision granting judgment to Pacific. Although the action was ultimately dismissed, such a dismissal, akin to a reversal or setting aside a judgment, does not negate the presumption of probable cause. Such a presumption is instead negated by demonstrating that the prior judgment was obtained through fraud, misrepresentation, perjury, or undue means. With Spinale's affidavit, plaintiff spends an inordinate amount of time attempting to negate the existence of probable cause, primarily asserting that the circumstances upon which the reparation action was commenced evince a lack of reasonableness. Spinale also avers that to the extent that his conviction did not stem from bribery or an indictment involving Pacific or its produce, there is basis to conclude that no probable cause existed for the reparation proceeding. However, these issues, while bearing on the existence of probable cause, cannot negate the existence of the same given the circumstances herein because they do not amount to fraud, misrepresentation, perjury, or undue means. Lastly, plaintiff fails to tender any evidence establishing malice. Plaintiff's argument that malice can be inferred from lack of probable cause is entirely correct. However, the evidence demonstrates that FFVA had probable cause, so malice cannot be inferred. Additionally, other than Spinale's conclusion that the reparation action was commenced to defraud or extort plaintiff, plaintiff presents no evidence negating Stuart's assertion that the reparation proceeding was commenced for legitimate purposes and in good faith.
Plaintiff's opposition fails to raise an issue of fact sufficient to preclude summary judgment with regard to the claim for abuse for process. While plaintiff argues that the reparation action was commenced by FFVA in order to attract more members rather than for the legitimate purpose of recovering money owed to Pacific as a result of fraudulent price reductions, plaintiff offers no evidence to support the same. As such the record is bereft of any evidence controverting FFVA's assertion that the reparation action was commenced for a legitimate and lawful purpose and as such the Court finds no perversion of process in order to obtain a collateral advantage. As mentioned above, plaintiff offers no opposition to FFVA's motion regarding the cause of action for fraud and as such nothing controvert's FFVA's evidence on that issue. Based on the foregoing, plaintiff fails to raise any triable issues of fact sufficient to preclude summary judgment. FFVA's motion seeking summary judgment over plaintiff is hereby granted.
FFVA's motion seeking summary judgment over plaintiff on its claim for malicious prosecution, abuse for process and fraud is hereby denied. Preliminarily, the Court notes that FFVA offers relatively little evidence establishing entitlement to summary judgment on its counterclaim. Moreover, the FFVA's burden on its counterclaim requires that it establish all elements of the causes of action asserted. The failure to establish one element is tantamount to failure to establish prima facie entitlement to summary judgment. With regard to FFVA's claim for malicious prosecution and abuse of process, the same fail for a host of reasons, not least of which, is that there has been absolutely no evidence of special injury suffered by FFVA. Not only has FFVA failed to tender any evidence as to special injury, to the extent that at best, FFVA has only incurred damages related to the defense of the hearing action, no special injury exists insofar as a special injury is concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit. FFVA similarly fails to tender any evidence supporting its counterclaim for fraud. Accordingly, FFVA's motion seeking summary judgment on its counterclaim is hereby denied.
FFVA's motion seeking to recover legal fees as a separate and distinct cause of action is hereby denied. It is well settled that in the absence of an agreement, contract, or statute, a party involved in litigation is responsible for all legal fees and costs incurred in the defense or prosecution of the action and cannot recover the same from an opposing party. Accordingly, FFVA is not entitled to legal fees as a matter of right simply because it has prevailed in the instant action. FFVA has not demonstrated that it is entitled to legal fees by virtue of an agreement, contract, or statute. Thus, that portion of FFVA's motion is also denied. To the extent that legal fees as a sanction pursuant to 22 NYCRR § 130-1.1 were first requested in FFVA's reply, such relief is denied as it constitutes an improper use of reply papers. It is hereby
ORDERED that the complaint herein and any and all cross-claims be dismissed in its entirety with prejudice. It is further
ORDERED that defendant serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days hereof.
This constitutes this Court's decision and Order.