Opinion
# 2012-041-002 Claim No. 116203 Motion # 2012-041-002 Claim No. M-79839 CM-80187 # 2012-041-002 Claim No. CM-80456
02-03-2012
LIERE v. THE STATE OF NEW YORK
Synopsis
Defendant's motion to dismiss claim alleging malicious prosecution and abuse of process as time-barred and for failure to state a cause of action is granted to the extent that time-barred causes of action, together with the timely cause of action for abuse of process that fails to state a cause of action, are dismissed and the motion is denied to the extent it seeks dismissal of the timely cause of action for malicious prosecution. The cross-motions regarding claimant's demand for disclosure of documents are denied with leave to renew within thirty (30) days following the deposition of defendant's witness. Case information
UID: 2012-041-002 Claimant(s): ROBERT LIERE D/B/A LIERE FARMS Claimant short name: LIERE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant The caption is amended, sua sponte, to reflect the name) : only proper defendant. Third-party claimant(s): Third-party defendant (s): Claim number(s): 116203 Motion number(s): M-79839, CM-80187, CM-80456 Cross-motion number(s): Judge: FRANK P. MILANO LAW OFFICES OF ROBERT J. CAVA, P.C. Claimant's attorney: By: Robert J. Cava, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Michele M. Walls, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: February 3, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The claim seeks damages for malicious prosecution and abuse of process arising from two separate proceedings initiated against claimant by the New York State Department of Environmental Conservation (DEC) in 1999 and 2003, respectively. Defendant moves to dismiss the 1999 causes of action as time-barred pursuant to CPLR 3211 (a) (5) and the applicable statute of limitations (CPLR 215). Defendant moves to dismiss the 2003 causes of action predicated upon a failure to state a cause of action pursuant to CPLR 3211 (a) (7).
Claimant opposes the motion to dismiss and cross-moves to compel defendant to comply with certain discovery demands. Defendant opposes the motion to compel and cross-moves for a protective order on the grounds that it has adequately responded to claimant's discovery demands.
The facts discussed in determining these motions, in addition to the factual allegations of the claim itself, are set forth in the exhibits annexed to the affirmations of the opposing attorneys. Claimant operates a 110 acre farm and, in addition to growing crops, receives materials from area landscapers, including such materials as leaves, grass, trees and dirt. Claimant recycles those materials into mulch and topsoil which he sells to landscapers. The referenced materials received by claimant at his farm are defined by DEC as "land clearing debris" and, according to DEC regulations, a facility that receives and processes only "land clearing debris" is exempt from DEC regulation.
The claim arises from two separate enforcement proceedings brought against claimant. The first proceeding began in 1999 after DEC inspected claimant's farm and thereafter charged claimant with unlawful operation of a solid waste management facility, subject to regulation by DEC. The charges were referred by DEC to the Suffolk County District Attorney for criminal prosecution in the District Court, Suffolk County, 1st District. The District Court dismissed the accusatory instruments on December 19, 2000 after the District Court Judge found, among other things, that there "is no evidence that the defendant [claimant] accepted solid waste" as defined by DEC regulations. Claimant thereafter continued to operate his farm, and accept and process "land clearing debris" in reliance upon the District Court Decision.
In 2003, DEC received complaints about noxious odors in the vicinity of the claimant's farm from nearby residents. Claimant refused to voluntarily allow a search of his farm by DEC and, subsequently, DEC obtained an administrative search warrant and conducted an inspection of the claimant's farm in October 2003 pursuant to the warrant.
Based upon the results of that inspection, DEC commenced an administrative enforcement proceeding against claimant. In the administrative complaint, DEC charged claimant with violations of certain provisions of Environmental Conservation Law (ECL) article 27, which gives DEC the power to regulate "solid waste management facilities." A hearing was held before an Administrative Law Judge (ALJ). After the hearing, the ALJ issued a report in which he concluded that most of the charges had been established, and that claimant should be required, among other things, to pay a civil penalty in the sum of $142,500.
DEC's Commissioner (Commissioner) then issued a written determination adopting the ALJ's findings and conclusions and, beyond confirming the civil penalty of $142,500, ordered that claimant, effective immediately, "not accept any land clearing debris, yard waste, or any other solid waste." Claimant then commenced a CPLR Article 78 proceeding to review the Commissioner's determination.
Claimant's Article 78 proceeding resulted in a Decision and Judgment of the of the Supreme Court, Appellate Division, Second Department: Matter of Liere v Sheehan (54 AD3d 862, 864 [2d Dept 2008]), in which the Court reviewed the critical underlying administrative findings:
"[I]n support of his recommendation that the Commissioner determine that most of the charges were established, the ALJ found that the petitioner was also [in addition to the exempt "land clearing debris"] receiving and processing 'yard waste.' 'Yard waste' is defined by DEC regulation as 'leaves, grass clippings, garden debris, tree branches, limbs and other similar materials, such as aquatic weeds' (6 NYCRR 360-1.2 [b] [185]). '[Y]ard waste which has been collected at the curbside' is specifically excluded from the definition of land clearing debris (6 NYCRR 360-1.2 [b] [94]). The logical inference to be drawn from this exclusion is that yard waste which has not been collected at the curbside is included within that definition. . . .
At the hearing, the petitioner, whose testimony about what materials he received and processed was given 'substantial weight' by the ALJ because it was not contradicted by the DEC, testified that he did not accept any yard waste from landscapers that had been collected at curbside. Thus, the evidence at the hearing clearly showed that the petitioner only received and processed land clearing debris. Accordingly, as the petitioner contended, his activities were exempt from DEC regulation (see 6 NYCRR 360-16.1 [b])."
Having found, as had the District Court Judge nearly eight (8) years prior, that claimant's "activities were exempt from DEC regulation," the Appellate Division held, at 864, as follows:
"Judicial review of an administrative determination made after a hearing required by law, and at which evidence is taken, is limited to whether that determination is supported by substantial evidence . . . Under the circumstances, it cannot be said that the Commissioner's determination is supported by substantial evidence. Accordingly, we annul that determination and dismiss the charges."
In the instant application, defendant argues that "the causes of action for malicious prosecution and abuse of process for the 1999 criminal proceedings are barred by the applicable statute of limitations since these claims were brought more than one year after the claims accrued." The statute of limitations for both malicious prosecution and abuse of process is one year (CPLR 215 [3]; Beninati v Nicotra, 239 AD2d 242 [1st Dept 1997]).
A cause of action for malicious prosecution accrues upon termination of the underlying proceeding (10 Ellicott Square Court Corp. v Violet Realty, Inc., 81 AD3d 1366, 1368 [4th Dept 2011], lv denied 17 NY3d 704 [2011]; Nichols v County of Rensselaer, 129 AD2d 167, 168 [3d Dept 1987]). Claimant's "1999" malicious prosecution cause of action therefore accrued on December 19, 2000 when the District Court dismissed the criminal charges against claimant.
With respect to accrual of an abuse of process claim:
"[T]here is no conclusive determination as to when such a cause of action accrues (see, e.g., Beninati v Nicotra, 239 AD2d 242). While the Court of Appeals has held that in an action under Court of Claims Act § 10, 'accrual of a cause of action for abuse of process need not await the termination of an action in claimant's favor' (Cunningham v State of New York, 53 NY2d 851, 853), here the abuse of process would not have been actionable until the proceeding was concluded since plaintiff would not have been able to allege that he suffered an injury without justification until the proceeding was terminated"(Dobies v Brefka, 263 AD2d 721, 723 [3d Dept 1999]).
Here, the latest possible accrual date of the "1999" abuse of process cause of action is December 19, 2000, when the District Court dismissed the criminal charges against claimant.
Claimant served a notice of intention to file a claim on the Attorney General on December 3, 2008. The claim was filed with the Clerk of the Court of Claims on December 15, 2008 and served on the Attorney General on December 17, 2008, each nearly eight (8) years after accrual of his "1999" causes of action.
Claimant's "1999" causes of action for malicious prosecution and abuse of process are dismissed.
Defendant moves also to dismiss the "2003" causes of action for malicious prosecution and abuse of process predicated upon a failure to state a cause of action pursuant to CPLR 3211 (a) (7).
On a motion to dismiss a pleading pursuant to CPLR 3211 (a) (7), the court must assume the allegations to be true and resolve all inferences reasonably flowing therefrom in favor of the claimant (Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314, 326 [2002]; Stone Ridge Country Properties Corp. v Mohonk Oil Co., Inc., 84 AD3d 1556 [3d Dept 2011).
In reviewing a motion under CPLR 3211 (a) (7), "a court may freely consider affidavits submitted by the [claimant] to remedy any defects in the [pleading]" (Leon v Martinez, 84 NY2d 83, 88 [1994]; see Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]). The court is required "accept as true the facts alleged in the [pleading] and any submissions in opposition to the dismissal motion" (511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; see IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 [2008]).
The court should "determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 (1994). The "criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Rappaport v International Playtex Corp., 43 AD2d 393, 394-395 [1974]; Gizara v New York Times Co., 80 AD3d 1026, 1027 [3d Dept 2011]).
Finally, in determining whether a pleading states a cause of action, the allegations of a bill of particulars supporting the pleading may be considered in the same manner as the pleading itself (MacDonald v Howard, 91 AD2d 1119, 1120 [3d Dept 1983]; Cueto v Hamilton Plaza Co., Inc., 67 AD3d 722, 724 [2d Dept 2009]).
With these principles in mind, and in particular considering that the defendant has brought its motion for dismissal pursuant to CPLR 3211 rather than for summary judgment pursuant to CPLR 3212, the Court will first consider whether the claimant states a cause of action for malicious prosecution.
"To support a malicious prosecution cause of action based on prior civil litigation, the [claimant] must show that the defendant initiated an action or proceeding that terminated in the [claimant's] favor, there was no probable cause for the action or proceeding, the defendant acted with malice and the [claimant] suffered a special injury" (Black v Green Harbour Homeowners' Assn, Inc., 37 AD3d 1013, 1014 [3d Dept 2007]; see Fink v Shawangunk Conservancy, Inc., 15 AD3d 754, 754 [3d Dept 2005]; Williams v Barber, 3 AD3d 695, 696-697 [3d Dept 2004]).
The 2003 administrative proceeding terminated in claimant's favor with the Decision and Judgment in Matter of Liere v Sheehan (54 AD3d 862, 864 [2d Dept 2008]) annulling the DEC administrative determination.
The claimant's bill of particulars, at paragraph 14, states that defendant commenced the 2003 administrative proceeding "with malice" and "without probable cause" based upon "essentially the same evidence" previously rejected by the District Court. In the limited discovery which has taken place, defendant has produced documents, now offered by claimant in opposition to defendant's motion to dismiss, which bear on defendant's alleged lack of probable cause. These include letters from DEC employees which indicate that during relevant time periods claimant's farm operations continued to be exempt from DEC regulation (see Exhibits F, G, and I attached to the July 27, 2011 affirmation of claimant's attorney).
Paragraph 14 of the bill of particulars further alleges that defendant "sought and obtained a provisional remedy that interfered with the person and property of the claimant." The claim itself alleges that claimant sustained "loss of income, sales, profits . . . and incurred attorneys fees to defend himself" in an amount up to $10,000,000.00.
Accepting these allegations as true, as the Court must, the Court finds that claimant states a cause of action for malicious prosecution.
The Court reaches a different conclusion with respect to the cause of action alleging abuse of process. "To establish a prima facie claim for abuse of process, [claimant] was required to demonstrate regularly issued process, either civil or criminal, an intent to do harm without excuse or justification, and use of the process in a perverted manner to obtain a collateral objective" (Plataniotis v TWE-Advance/Newhouse Partnership, 270 AD2d 627, 630 (3d Dept 2000]).
W.I.L.D. W.A.T.E.R.S., Ltd. v Martinez (152 AD2d 799, 799-800 [3d Dept 1989]), explains that:
"Abuse of process is the misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process (see, Curiano v Suozzi, 63 NY2d 113, 116). In the instant case, Nelson alleges that plaintiff acted improperly in seeking a temporary restraining order and preliminary injunction against her which were subsequently vacated by this court (148 AD2d 847, supra). There is no allegation in Nelson's counterclaim that plaintiff sought to obtain some collateral advantage over Nelson or corresponding detriment to Nelson which was outside the legitimate end of process by the proceeding, a required prerequisite of the tort of abuse of process."
Even accepting all of claimant's allegations as true, the claim and supporting papers fail to allege facts demonstrating the use of the process [the DEC Administrative Complaint] in a "perverted manner to obtain a collateral objective" (Plataniotis, 270 AD2d at 630).
Defendant's application to dismiss claimant's cause of action for abuse of process is granted.
Claimant cross-moves to compel defendant to comply with certain discovery demands. Defendant opposes the motion to compel and cross-moves for a protective order on the grounds that it has adequately responded to claimant's discovery demands.
Claimant served a "Second Document Demand" on defendant on or about May 11, 2009. Rather than specifically responding to the document demand, defendant asked claimant's counsel to appear at a DEC office to review DEC documents. Claimant's counsel did so on January 29, 2010. Claimant's counsel was directed to label documents it deemed responsive to claimant's demand with the assurance that defendant would copy the labeled documents and provide the copies to claimant.
On August 27, 2010, defendant delivered "a pile of documents," totaling 491 pages, to claimant's counsel without a "cover sheet identifying what documents were responsive to what demands."
Claimant's counsel objected to defendant's discovery response via a detailed letter dated January 20, 2011 which identified document demands which he asserted were neither fully complied with nor addressed by defendant.
Defendant contends, through DEC Assistant Regional Attorney Vernon G. Rail, who participated as a prosecutor in the DEC administrative proceeding against claimant and who also conducted the DEC document search, that it has fully complied with claimant's demand to the extent possible and, as such, seeks a protective order.
Both cross-motions are denied, with leave to renew, after a deposition of DEC Assistant Regional Attorney Vernon G. Rail, to be conducted within ninety (90) days of the date of filing of this Decision and Order.
Defendant's motion to dismiss the claim is granted to the extent that the "1999" causes of action, together with the "2003" cause of action for abuse of process, are dismissed. Defendant's motion to dismiss the "2003" cause of action for malicious prosecution is denied. Each party's cross-motion involving claimant's demand for disclosure of documents is denied with leave to renew within sixty (60) days of the deposition of DEC Assistant Regional Attorney Vernon G. Rail.
February 3, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion to Dismiss, filed April 15, 2011;
2. Affirmation of Michele M. Walls, dated April 15, 2011, and annexed exhibits;
3. Claimant's Notice of Cross-Motion to Compel Discovery, filed August 1, 2011;
4. Affirmation of Robert J. Cava in Support of Cross-Motion and in Opposition to Motion to Dismiss, dated July 27, 2011, and annexed exhibits;
5. Defendant's Notice of Cross-Motion for Protective Order, filed October 4, 2011;
6. Reply Affirmation of Michele M. Walls, dated September 30, 2011, and annexed exhibits;
7. Affirmation of Robert J. Cava in Opposition to Cross-Motion and in Reply to Motion to Dismiss, dated November 9, 2011, and annexed exhibit.