Opinion
Index No. 151344/2021 Motion Seq. No. 001 NYSCEF Doc. No. 23
12-23-2022
SYLVIA LEMBERT, Plaintiff, v. EVAN D. ZUCKER, Defendant.
Unpublished Opinion
DECISION + ORDER ON MOTION
HON. VERNA L. SAUNDERS, JSC
The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6. 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 20, 21, 22 were read on this motion to/for DISMISS .
Plaintiff commenced this action asserting violation of Judiciary Law § 487. abuse of process, intentional infliction of emotional distress, negligent infliction of emotional distress, and defamation as against defendant, Evan Zucker, an attorney retained to represent plaintiffs former spouse, John Bruzzese, in various matrimonial proceedings. (NYSCEF Doc. No. 1, summons and complaint).
Now, defendant moves pre-answer seeking dismissal of the complaint pursuant to CPLR 3211(a)(1) and (7) (NYSCEF Doc. No. 4, Notice of Motion). Specifically, defendant avers that (1) plaintiffs Judiciary Law § 487 claim must be dismissed because all such allegations may only be raised in the pending appeal before the Second Department and because plaintiff fails to allege outrageous or egregious conduct or proximately caused damages sufficient to sustain such a claim; (2) plaintiffs abuse of process claim must be dismissed because plaintiff fails to allege misuse of legal process for an unjustified purpose, and rests entirely upon conclusory allegations; (3) plaintiffs intentional and negligent infliction of emotional distress claims fail as the record is devoid of sufficiently egregious conduct and proximately caused damages; and (4) plaintiff s defamation/libel claim must be dismissed because defendant is absolutely immune from liability arising from any of the filings with the Second Department made on behalf of his client pursuant to the litigation privilege (NYSCEF Doc. No. 5. Affirmation in Support).
Defendant asserts that plaintiff is using the instant lawsuit to attack the legal arguments advanced by defendant during his representation of plaintiffs ex-husband and to attack the prior orders issued in the related matrimonial action between the parties. Furthermore, insofar as plaintiffs claims are related to arguments raised before the Second Department plaintiff has correctly asserted said claims in her brief to the Second Department and this plenary proceeding should be dismissed. Defendant further asserts, inter alia, that the allegations in the complaint are insufficiently pleaded and therefore, must be dismissed.
In opposition, plaintiff notes that there is no affidavit from the defendant annexed to the moving papers and that the attorney of record for defendant was not a witness to any of the alleged occurrences mentioned. Plaintiff argues that insofar as defendant knowingly made material misrepresentations to the court, such misconduct constitutes malice, is the basis for a Judiciary Law 487 claim, and is egregious and outrageous such that her claims for intentional and negligent infliction of emotional distress lie. In response to defendant's argument that plaintiff properly raised her claims before the Second Department and a plenary action is unnecessary, plaintiff avers that while she did in fact inform the Second Department of the allegations asserted in the case at bar, she commenced this proceeding in order to recover for damages caused by defendant's action.
Dismissal is warranted based on documentary evidence only where the documentary evidence utterly refutes plaintiff s factual allegations, conclusively establishing a defense as a matter of law (see CPLR3211 [a][ 1 ]; Leon v Martinez, 84N.Y.2d 83, 88 [1994]). Dismissal is proper where the documents relied upon definitively disposed of a plaintiff s claim, (see Bronxville Knolls v Webster Town Ctr. Pshp., 634 N.Y.S.2d 62, 63 [1995].)
When considering a motion to dismiss pursuant to CPLR 321 I (a)(7), the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Leon, supra.) Normally, a court should not be concerned with the ultimate merits of the case, (see Anguita v Koch, 179 A.D.2d 454 [1st Dept 1992].) However, these considerations do not apply to allegations consisting of bare legal conclusions nor to factual claims which are flatly contradicted by documentary evidence, (see Simkin v Blank, 19 N.Y.3d 46 [2012].)
The relevant background is as follows: Plaintiffs ex-husband, John Bruzzese, commenced a divorce proceeding on July 31,2011. The trial took place over several months in 2014 and the court issued its decision after trial on December 30, 2014 (NYSCEF Doc. No. 7, Decision after Trial). Mr. Bruzzese sought a modification of the 2014 order requesting a credit against his equitable distribution payment amongst other things. Plaintiff opposed the motion and cross-moved for relief on various grounds. (NYSCEF Doc. No. 8., Decision and Order June 25, 2018). Several branches of plaintiff s cross-motion were denied and as such, she moved to reargue. The court denied her motion to reargue (NYSCEF Doc. No. 9, Decision and Order August 23, 2018) and plaintiff appealed (NYSCEF Doc. No. 10, Appellant's Brief). At the time the instant motion was filed, the Second Department had not yet rendered a decision. However, a decision has since been rendered affirming the June 25. 2018 and August 23, 2018 decisions of the trial court (NYSCEF Doc. No. 21, App Div, Second Dept Decision and Order March 23, 2022). The Second Department did not address the claims asserted in this action.
In the case at bar, plaintiff alleges several instances in which defendant knowingly made material misrepresentations to the court. Most, if not all, of the examples provided are with respect to arguments advanced on behalf of Mr. Bruzzese before the Second Department. There is no dispute that plaintiff included these claims in her brief to the Second Department. However, as previously noted, the Second Department declined to address said claims.
After careful consideration of the arguments advanced, defendant's motion is granted.
As to the abuse of process cause of action, the elements of abuse of process are (1) regularly issued process; (2) an intent to do harm without excuse or justification; and (3) use of the process in a perverted manner to obtain a collateral objective, (see Casa de Meadows Inc. [Cayman Islands] v Zaman, 76 A.D.3d 917, 921 [1st Dept 2010]). Plaintiff fails to state a cause of action as against defendant who was retained to represent Mr. Bruzzese and as such, filed motions as part of his representation. It is clear from the protracted and highly contested litigation history between the parties that both plaintiff and Mr. Bruzzese. by counsel, have filed several motions since the commencement of their divorce in 2011. As such, the cause of action for abuse of process is without merit as the complaint fails to allege how defendant's arguments on behalf of his client constitutes an abuse of process or that process was misused with the intent to cause harm. The mere commencement of an action is insufficient to sustain a claim for abuse of process even when it is alleged, as it is here, that the action was commenced with a malicious intent, (see Batbrothers LLC v Paushok, !72A.D.3d 529,530 [1st Dept 2019]; IG. Second Generation Partners. L.P. v Reade, 17 A.D.3d 206. 207 [1st Dept 2005]; (Valerias v Johnes, 257 A.D.2d 352, 354 [1st Dept 1999], Iv dismissed 93 N.Y.2d 958 [1999]). Thus, the abuse of process claim is dismissed.
Similarly, plaintiffs allegations fail to meet the high standards required for a cause of action for intentional infliction of emotional distress or negligent infliction of emotional distress to lie. To properly plead a cause of action for negligent or intentional infliction of emotional distress, the plaintiff must establish "(i) extreme and outrageous conduct; (ii) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (iii) causation; and (iv) severe emotional distress." (Howell v New York Post Co., 81 N.Y.2d 115, 121 [1993].) The conduct alleged must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Claims typically fail because the challenged conduct is not sufficiently outrageous, or because a statement is privileged. The conduct must consist of more than mere insults, indignities and annoyances. Further, an emotional distress claim is dismissible unless the claim arises as a result of a campaign of harassment or intimidation." (164 Mulberry St. Corp. v Columbia Univ., 4 A.D.3d 49 [1st Dept 2004].) While the high level of conflict in this action may have contributed to heated debate, such is insufficient to constitute extreme and outrageous conduct. Furthermore, allegations that defendant made false statements are not sufficiently outrageous to support the claims of negligent or intentional infliction of emotional distress, (see Shane v Rosenwaks, 2021 NY Slip Op 31141 [U] [Sup Ct, NY County 2021 ].) Accordingly, the negligent and intentional infliction of emotional distress claims are dismissed.
With respect to the claim of defamation, to be successful, a plaintiff must prove that defendant made "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." (Epifani v Johnson, 65 A.D.3d 224, 233 [2009] [internal quotations and citations omitted].) The complaint must set forth the particular words allegedly constituting defamation, the time, place and manner in which the false statement was made, and specify to whom it was made, (id.-, see CPLR 3016[a]; Dillon v City of New York, 261 A.D.2d 34, 38 [1999].) A defamatory statement is libelous per se "if the statement tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society." (Matovcik v Times Beacon Record Newspapers, 46 A.D.3d 636, 637 [2007] [internal quotations and citations omitted].) Paragraph seven of the complaint alleges twenty-four purported instances of defamation, listed as subsections (a) through (x). With the exception of subsection (j). none of the statements asserted constitute defamation as they are either indirect; statements made regarding someone other than the plaintiff; lack specificity: or fail to result in ridicule or public contempt. However, while (j) does appear to be somewhat defamatory in nature, insofar as plaintiff has failed to allege special damages flowing directly from the injury to her reputation, the cause of action for defamation does not lie and must also be dismissed, (see Franklin v Daily Holdings, Inc., 135 A.D.3d 87 [1st Dept 2015] [wherein the court stated that special damages consist of the loss of something economic flowing directly from the injury to reputation caused by the defamation.) Furthermore, the statements were made by an attorney in connection with a proceeding before a court and as such are protected by the litigation privilege, (see Front, Inc. v Khalil, 24 N.Y.3d 713 [2015] [wherein the court noted that relevant statements made injudicial or quasi-judicial proceedings are afforded absolute protection so that those discharging a public function may speak freely to zealously represent their clients without fear of reprisal or financial hazard] [internal citation and quotations omitted].)
Turning to the Judiciary Law § 487, "relief under a cause of action based upon Judiciary I,aw § 487 is not lightly given and requires a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys that caused damages. Allegations regarding an act of deceit or intent to deceive must be stated with particularity. The claim will be dismissed if the allegations as to scienter are conclusory and factually insufficient." (Facehook. Inc. v DLA Piper LLP (US), 134 A.D.3d 610, 615 [internal citations and quotations omitted].) Scienter is a legal term that refers to a culpable state of mind, as such plaintiff would need to prove that defendant acted knowingly, willfully, intentionally, or recklessly. While plaintiff asserts defendant made material misrepresentations knowingly, such allegation is wholly conclusory, especially where defendant was making statements on behalf of another person in his capacity as their attorney. An attorney is liable for a violation of Judiciary Law § 487 if he or she ''[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the Court or any party; or... [w]ilfully delays his client's suit with a view to his own gain." A cause of action under the statute ''requires a showing of egregious conduct or a chronic and extreme pattern of behavior' on the part of the defendant attorneys that caused damages" (Facebook, Inc. v DLA Piper LLP (US), 134 A.D.3d 610, 615 [1st Dept 2015], Iv denied 28 N.Y.3d 903 [2016] [citation omitted]). Allegations of deceit or the intent to deceive must be pled with particularity (Bill Birds, Inc. v Stein Law Firm, P.C., 164 A.D.3d 635, 637 [2d Dept 2018], affd 35 N.Y.3d 173 [2020]; Facebook, Inc. v DLA Piper LLP (US), 134 A.D.3d at 615 [dismissing a Judiciary Law § 487 claim where the allegations of scienter were conclusory and were not supported by specific facts]). Insofar as plaintiffs claims of a scienter are not supported by sufficient facts, this cause of action for Judiciary Law § 487 must also be dismissed.
The remaining arguments are either without merit or need not be addressed given the findings above. Therefore, in accordance with the foregoing, it is hereby
ORDERED that defendant's motion to dismiss is granted in its entirety and the complaint is hereby dismissed; and it is further
ORDERED that, within twenty (20) days after this decision and order is uploaded to NYSCEF, counsel for defendant shall serve a copy of this decision and order, with notice of entry, upon plaintiff.