Opinion
02-24-2015
Alessandro CALASTRI, Plaintiff–Appellant–Respondent, v. Hannah OVERLOCK, Defendant–Respondent–Appellant.
Wrobel Schatz & Fox LLP, New York (Phillip R. Schatz of counsel), for appellant-respondent. Carter Ledyard & Milburn LLP, New York (Alan S. Lewis of counsel), for respondent-appellant.
Wrobel Schatz & Fox LLP, New York (Phillip R. Schatz of counsel), for appellant-respondent.
Carter Ledyard & Milburn LLP, New York (Alan S. Lewis of counsel), for respondent-appellant.
FRIEDMAN, J.P., SWEENY, SAXE, FEINMAN, CLARK, JJ.
Opinion Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered April 29, 2014, to the extent it granted defendant's motion for partial summary judgment dismissing plaintiff's false arrest claim, denied plaintiff's cross motion for summary judgment dismissing defendant's counterclaims for conversion and frivolous claims (CPLR 8303–a ), granted in part plaintiff's motion to compel, and denied defendant's motion to amend her amended answer to allege malicious prosecution, unanimously modified, on the law, the counterclaims for conversion and frivolous claims dismissed, and otherwise affirmed, without costs. Appeal from aforementioned order, insofar as it compels defendant to produce medical authorizations, unanimously dismissed, without costs, as moot.
The court properly dismissed plaintiff's false arrest claim. Plaintiff did not dispute before the trial court that his guilty plea to one count of criminal mischief in the fourth degree, stemming from a September 21, 2011 incident, was in full satisfaction of charges in the misdemeanor complaint, including those relating to his February 21, 2012 arrest. As a result, plaintiff's plea constitutes probable cause for his arrest and thus provides defendant an affirmative defense to his false arrest claim (Marrero v. City of New York, 33 A.D.3d 556, 556–557, 824 N.Y.S.2d 228 [1st Dept.2006] ; Bennett v. New York City Hous. Auth., 245 A.D.2d 254, 254, 665 N.Y.S.2d 91 [2d Dept.1997] ; Lluberes v. City of Troy, 2014 WL 1123413, *15, 2014 U.S. Dist. LEXIS 39799, *49 [N.D.N.Y.2014] ). Plaintiff's argument that a more detailed court colloquy or plea allocution is required before such a plea can be deemed to dispose of a false arrest claim might be relevant to the validity of his plea, but his remedy then lies in challenging his guilty plea in the criminal proceeding, which was pending for nearly 16 months when he pleaded guilty with the advice of counsel.
The court did not abuse its discretion in denying defendant's motion for leave to amend her answer to allege a malicious prosecution counterclaim. Only plaintiff's false arrest claim was dismissed, the other claims against defendant are still pending, and thus the action has not yet terminated favorably to her (CPLR 3025[b] ; McGhee v. Odell, 96 A.D.3d 449, 450, 946 N.Y.S.2d 134 [1st Dept.2012] ; MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 500, 901 N.Y.S.2d 522 [1st Dept.2010] ; see also Health–Chem Corp. v. Adler, 201 A.D.2d 326, 327, 607 N.Y.S.2d 636 [1st Dept.1994] ; Flaks, Zaslow & Co. v. Bank Computer Network Corp., 66 A.D.2d 363, 366, 413 N.Y.S.2d 1 [1st Dept.1979], appeal dismissed 47 N.Y.2d 951 [1979] ).
The court should have dismissed defendant's conversion counterclaim, as it was duplicative of her trespass to chattel counterclaim, as the former arose from the same facts as the latter and alleges the same damages (see Inkine Pharm. Co. v. Coleman, 305 A.D.2d 151, 152, 759 N.Y.S.2d 62 [1st Dept.2003] ).
The court also should have dismissed defendant's purported counterclaim seeking costs for bringing a frivolous action pursuant to CPLR 8303–a(a), as no independent cause of action exists under that provision (Cerciello v. Admiral Ins. Brokerage Corp., 90 A.D.3d 967, 936 N.Y.S.2d 224 [2d Dept.2011] ).
Finally, the portion of defendant's cross appeal challenging the court's order directing her to produce authorizations for the exchange of medical information without requiring that her medical records be designated for “attorney's eyes only” should be dismissed as moot. Apparently, the parties have executed a so-ordered confidentiality stipulation, without an attorneys'-eyes-only provision, and defendant has since produced her medical records to plaintiff. In any case, the court properly denied defendant's request, as she failed to elaborate as to how plaintiff's alleged history of violence toward her necessitated such a restriction (see Chavoustie v. New York Hosp.-Cornell Med. Ctr., 253 A.D.2d 702, 677 N.Y.S.2d 572 [1st Dept.1998], lv. denied 93 N.Y.2d 805, 689 N.Y.S.2d 429, 711 N.E.2d 643 [1999] ).