Opinion
No. 602342/08.
2010-06-23
MOBILE TRAINING & EDUCATION, INC., Plaintiff, v. AVIATION GROUND SCHOOLS OF AMERICA d/b/a Aviation & Electronic Schools of America, Carrie Courter, James Doyle, Jamie Doyle and John Does No. 1–10, Defendants.
Jody N. Gerber, Esq., for Plaintiff. Theresa Trzaskoma, Esq. and Nicole Barrett, Esq. of Brune & Richard LLP, for Defendants.
Jody N. Gerber, Esq., for Plaintiff. Theresa Trzaskoma, Esq. and Nicole Barrett, Esq. of Brune & Richard LLP, for Defendants.
EILEEN BRANSTEN, J.
In motion sequence number 001, defendants Aviation Ground Schools of America d/b/a Aviation & Electronic Schools of America, Carrie Courter, James Doyle and Jamie Doyle move, pursuant to CPLR 3211(a)(7) and (a)(8), to dismiss Plaintiff's Amended Verified Complaint.
The court addresses the issue of personal jurisdiction raised by CPLR 3211(a)(8) as well as the sufficiency of the pleadings under CPLR 3211(a)(7).
I.Procedural History
Plaintiff Mobile Training & Education (“MT & E”) served its Summons and Verified Amended Complaint on Defendants Aviation Ground Schools of America d/b/a Aviation & Electronic Schools of America (“AESA”) and Carrie Courter, James Doyle, and Jamie Doyle (the “Individual Defendants”) in California. Defendants have not answered, but filed a motion to dismiss for failure to state a cause of action and lack of personal jurisdiction.
II.Factual Background
Defendant AESA is a provider of off-site educational courses in the fields of aviation, electronics, telecommunications and computers, organized under the laws of California, having offices in Colfax, California. AESA was served with process in California. Affidavit of James Doyle (“Doyle Aff.”), ¶¶ 4, 5. AESA states it “has only limited contacts with New York” and “is not a party to any New York contracts.” Doyle Aff., ¶ 6. Plaintiff MT & E claims Defendant AESA conducts classes in New York. Affirmation in Opposition, ¶ 16, Ex. B.
Plaintiff MT & E is a New York corporation, with offices in New York City. Complaint, ¶ 1. AESA and MT & E are competitors in providing aviation and electronics continuing education programs. Complaint, ¶ 10.
Individual Defendant Courter is a secretary for AESA. Courter denies any connections with New York whatsoever. See Affidavit of Carrie Courter. Individual Defendants Jamie Doyle is responsible for AESA's sales and accreditation, and, other than a personal visit to New York in 1995, has no affiliation with the state. See Affidavit of Jamie Doyle. Individual Defendant James Doyle is the president and CEO of AESA, and also claims no connection to New York beyond occasional personal visits. See Doyle Aff.
III.Motion to Dismiss for Lack of Personal Jurisdiction under CPLR 3211(a)(8)
A.Standard of Law
The plaintiff, as the party asserting jurisdiction, bears the burden of proof of establishing the existence of personal jurisdiction. See O'Brien v. Hackensack University Medical Center, 305A.D.2d 199, 200 (1st Dep't 2003).
Defendants urge a standard whereby plaintiff must make a prima facie showing that personal jurisdiction exists. See Bill–Jay Mach. Corp. v. Koster Indus., Inc., 29 AD3d 504, 505 (2nd Dep't 2006). In the context of a CPLR 3211(a)(8) motion to dismiss, however, a plaintiff is not required to make a prima facie showing of jurisdiction. Such a requirement could “impose undue obstacles for a plaintiff, particularly one seeking to confer jurisdiction under the long arm' statute ... [because] the jurisdictional issue is likely to be complex.” Peterson v. Spartan Indus., Inc., 33 N.Y.2d 463, 467 (1974). In order to defeat a dismissal motion, a plaintiff need only demonstrate that jurisdictional facts “may exist” and that it is entitled to the disclosure expressly sanctioned by CPLR 3211(d). See id. at 466.
In determining whether Plaintiff has carried this minimal burden, the Court must view the jurisdictional allegations in the pleadings and supporting affidavits in the light most favorable to the plaintiff and resolve all doubts in its favor. See Brandt v. Toraby, 273 A.D.2d 429, 430 (2d Dept 2000).
.CPLR 3211(d) provides: “Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition to a motion made under subdivision (a) or (b) that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion, allowing the moving party to assert the objection in his responsive pleading, if any, or may order a continuance to permit further affidavits to be obtained or disclosure to be had and may make such other order as may be just.”
On this record, where AESA made a pre-answer motion to dismiss the action under CPLR 3211(a)(8), Plaintiff MT & E need only demonstrate that jurisdictional facts sufficient to confer personal jurisdiction on Defendants “may exist” in order to defeat AESA's motion to dismiss.
B.Long–Arm Statute
To determine whether a non-domiciliary may be sued in New York, the court must first determine whether the New York long-arm statute confers jurisdiction over the non-domiciliary in light of its contacts with this state. If the defendant's relationship with New York falls under the reach of CPLR § 302, the court must then determine whether the exercise of jurisdiction comports with constitutional due process.
In the complaint, Plaintiff bases jurisdiction on CPLR § 302(a) without specifying the subsection on which it relies. In Plaintiff's counsel's Affirmation in Opposition to the motion to dismiss, Plaintiff clarifies its basis of jurisdiction as CPLR § 302(a)(3)(ii), the New York long-arm statute that provides for personal jurisdiction over non-domiciliaries who commit tortious acts outside New York that cause injury within New York.
Plaintiff claims only CPLR § 302(a)(3)(ii) as a possible basis for jurisdiction over AESA and the Individual Defendants. Accordingly, the court does not address other bases for personal jurisdiction over non-domiciliaries.
CPLR § 302(a)(3)(ii) confers jurisdiction on non-domiciliaries only when the following five elements are met: (1) the defendant committed a tortious act outside the State; (2) the cause of action arises from that act; (3) the act caused injury to a person or property within the State; (4) the defendant expected or should reasonably have expected the act to have consequences in the State; and (5) the defendant derived substantial revenue from interstate or international commerce. SeeCPLR § 302(a)(3)(ii); see also LaMarca v. Pak–Mor Mfg. Co., 95 N.Y.2d 210, 214 (2000).
The complaint pleads that AESA is a California entity. Thus, in order to establish personal jurisdiction MT & E must show: (1) AESA's commission of a tort outside New York; (2) that MT & E's claim of unfair business practices arises from AESA's tortious act; (3) injury to MT & E in New York; (4) that AESA should reasonably have foreseen New York consequences; and (5) that AESA derives substantial revenue from interstate commerce. LaMarca, 95 N.Y.2d at 214. The court will address each element in turn.
1. Tort Outside of the State
Defendants argue in their motion to dismiss that Plaintiff has failed to allege an out-of-state tort. For the purposes of this discussion of personal jurisdiction, the Court will assume that Plaintiff has properly alleged a tort by AESA and the Individual Defendants. The adequacy of Plaintiff's tort allegations will be discussed later in this Opinion.
2. Cause of Action Arises from that Tortious Act
The New York long-arm statute expressly provides that there must be a causal connection between the cause of action and the alleged tortious act. In order to justify haling a non-domiciliary into court in New York, where it does not have a “systematic course of doing business” that would subject the defendant to traditional personal jurisdiction under CPLR § 301, there must exist “some articulable nexus between the business transacted and the cause of action sued upon.” McGowan v. Smith, 52 N.Y.2d 268, 272–273 (1981) (internal citations omitted).
The complaint alleges three tortious acts by the Defendants: (1) that Defendants provided false information about Plaintiff's operations to educational officers at military bases and to current students, and that Defendants harassed educational partners (Complaint ¶ 10); (2) that Defendant Doyle physically and verbally harassed Plaintiff's students and instructors at a training location in California (Complaint ¶ 11); and (3) Defendants instituted frivolous ligation against MT & E in California. Complaint ¶ 12.
In opposition to the motion to dismiss, Plaintiff also alleges the “defendants' wrongful actions cause[d] plaintiff to lose substantial sums of money from all classes conducted throughout the U.S.” and “[d]ue to defendants' conduct in spreading false statements, plaintiff lost almost all of its students [and] ... conducts virtually no classes in New York.” Affirmation in Opposition, ¶ 13. At oral argument, counsel for Plaintiff added the allegation that Defendants contacted Verizon employees and Verizon's office in charge of additional education and falsely claimed that MT & E was not a licensed provider. Transcript, 11:7–11. Plaintiff does not specify where Verizon's offices are located, the nature of MT & E's contracts with Verizon or the site of AESA's alleged contacts with Verizon.
While the alleged acts outside of New York do not have an obvious causal connection to the claimed injury of loss of customers and cessation of business in New York, the court is obligated to take the allegations as true and draw all reasonable inferences in favor of the plaintiff. See Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366 (1998). It is reasonable to conclude that if Defendants wrongfully interfered with Plaintiff's business contracts or customers, in particular if the contract was with a large interstate corporation such as Verizon that likely has offices in New York, that the loss of customers and cancellation of classes in New York could have resulted from the interference elsewhere.
Defendant James Doyle submitted an affidavit in support of the motion to dismiss that attached exhibits purporting to show that MT & E continued to certify electronics technicians in New York in late 2006 and all of 2007. Without determining the credibility or accuracy of that information, it does not refute Plaintiff's claim that it conducts “virtually no classes in New York” as one could infer that the certifications granted in 2006–07 were far fewer than the number granted prior to the alleged tortious conduct.
3. Injury Within the State
Plaintiff MT & E argues that AESA's allegedly wrongful acts, which took place in California, West Virginia and Missouri, caused MT & E economic harm through loss of customers and cancellation of classes in New York, its state of incorporation. However, a financial loss occurring in the state where the harmed party is incorporated does not by itself meet the “injury within the state” requirement. For a financial loss to rise to the level of “injury within the state,” the loss must occur in New York as a result of something other than MT & E's mere incorporation here. In Fantis Foods, Inc. v. Standard Importing Co., Inc., 49 N.Y.2d 317, 326 (1980), the Court of Appeals stated that “residence or domicile of the injured party within a State is not a sufficient predicate for jurisdiction, which must be based upon a more direct injury within the State and a closer expectation of consequences within the State than the indirect financial loss resulting from the fact that the injured person resides or is domiciled there.” The Second Circuit, in its construction of the New York long-arm statute, has also rejected “derivative commercial injury in th[is] state” resulting solely from the fact that plaintiff is domiciled in New York. See American Eutetic Welding Alloys Sales Co., Inc. v. Alloys Corp., 439 F.2d 428, 433 (2d Cir.1971).
However, economic injury has been found to a be a sufficient basis for jurisdiction where the plaintiff conducts its business in New York and the injury stems from the threatened loss of important New York customers. See Sybron Corp. v. Wetzel, N.Y.2d 197, 131 (1978). The Court of Appeals in Sybron found that the wrongful solicitation of the plaintiff's major customer in New York was sufficient to show injury within the state, even where the alleged tortious act took place outside the state. Inferences about the potential harm from the alleged disclosure of plaintiff's trade secrets further supported the Sybron court's analysis. However, the Sybron court did not limit its holding that economic injury stemming from loss of customers in New York met the “injury within the state” prong only to those cases where trade secrets were also acquired in New York.
Here, the complaint alleges no direct interference by AESA with MT & E's customers or business in New York. However, an affirmation submitted by plaintiff MT & E's counsel in opposition to AESA's motion to dismiss belatedly adds that defendants' alleged provision of false information to “proposed students (Verizon employees and Armed Forces personnel) and educational partners (West Virginia Community College and University of Central Missouri)” caused Plaintiff to “lose substantial sums of money from all classes conducted through the U.S. [and] ... a cessation of plaintiff's New York classes.” Affirmation in Opposition, ¶ 13. Plaintiff also alleges in its opposition that AESA conducted classes in New York in January 2006 and January/February 2009. Affirmation in Opposition, Ex. B.
At oral argument, Plaintiff's counsel added that defendants contacted Verizon employees and Verizon's office in charge of additional education and falsely claimed that MT & E was not a licensed provider (Transcript, 11:7–11), and that MT & E earned $354,000 in fees from Verizon for 166 students between April and July, 2006 but had only 16 students in New York the following quarter. Transcript, 12:13–16, 22:9–16. Depending on whether defendants have sold their courses in New York to former MT & E clients, or solicited and acquired any of the New York customers of MT & E, this may constitute the sort of in-state activity held sufficient to sustain jurisdiction in Sybron.
Plaintiff's allegations of wrongdoing by AESA are limited to Fall 2006 and March 2007, which would only support an inference that classes conducted by AESA in January/February 2009, and not those held in January 2006, could damage MT & E.
4. Reasonable Expectation of Consequences
Whether AESA had a reasonable expectation of consequences resulting from its actions in New York is determined not by looking at the specific event that led to the injury within the state, but, rather, by determining whether AESA could have foreseen consequences in the forum generally. See Fantis, 49 N.Y.2d at 326, n. 4,citing Twelfth Ann. Report of N.Y. Judicial Conference, 1967, p. 344. Therefore, we do not have to determine if AESA's alleged actions in California, West Virginia and Missouri gave rise to foreseeability of injury in New York. Instead, if AESA does indeed conduct classes in New York as discussed below in Section III(B)(5), it should reasonably expect consequences from its connection with the forum state. In addition, if AESA has solicited MT & E customers in New York as discussed above in Section III(B)(3), it is reasonable for AESA to foresee that injury to MT & E would occur in New York.
5. Substantial Revenue from Interstate Commerce
In its complaint, Plaintiff fails to allege any facts showing that AESA or the Individual Defendants derive substantial revenue from interstate commerce. See, e.g., Best Cellars Inc. v. Grape Finds at Dupont, Inc., 90 F.Supp.2d 431, 448[S.D.NY 2000). Plaintiff does attach a record of new instructors certified by AESA in August 2006 and January/February 2008 to its Affirmation in Opposition. Affirmation in Opposition, Ex. A. An inference can be drawn that defendants derive substantial revenue from interstate commerce because AESA certified new instructors in seven different states in those two time periods. While not conclusive evidence that AESA earned substantial revenue from interstate commerce, for the purposes of this motion to dismiss, the court finds sufficient showing that such facts may exist, (Peterson, 33 N.Y.2d at 466) to establish the fifth requirement.
C.Summary of Personal Jurisdiction Test
1. As to AESA
Upon the above analysis, the court finds for the purposes of this motion to dismiss, wherein the Plaintiff is provided all favorable inferences ( see Leon v. Martinez, 84 N.Y.2d 83, 87 (1994), that Plaintiff MT & E has alleged facts sufficient to provide personal jurisdiction over AESA under CPLR 302(a)(3)(ii).
2. As to the Individual Defendants
Each of the Individual Defendants aver that they have limited or no connection to the State of New York. With respect to Carrie Courter, James Doyle and Jamie Doyle, Plaintiff's complaint, affirmation in opposition and oral argument offer no allegations that any of the individuals caused injury within the state, had a reasonable expectation of consequences in New York or earn substantial revenue from interstate commerce. Plaintiff has failed to establish a basis on which to find long-arm jurisdiction upon the individual defendants pursuant to CPLR § 302(a)(3). Since no other source of jurisdiction is alleged as to each, the motion to dismiss as to the Individual Defendants is granted.
D.Constitutional Due Process
Although not raised by the parties in their briefs, the Court notes that there is an additional step to the jurisdictional analysis. The exercise of personal jurisdiction also must comport with the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See LaMarca, 95 N.Y.2d at 216–219. A state may exercise personal jurisdiction over a non-domiciliary defendant provided that the defendant has certain “minimum contacts” with the forum “such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The test for “minimum contacts” has been refined over the years to whether a defendant's “conduct and connection with the forum State” are such that it “should reasonably anticipate being haled into court there.” World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). If it is determined that a defendant has purposefully established minimum contacts with the forum, those contacts may then be considered in connection with other factors to determine whether the exercise of jurisdiction would comport with “fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471 U.S 462, 476 (1985).
Here, AESA is a provider of educational services attempting to sell its products in New York and hoping to profit from sales to New Yorkers. AESA therefore has sufficient minimum contacts with New York such that it could reasonably expect to be held responsible for its actions in this state. Furthermore, AESA expected or should have expected that tortious actions towards a competitor in New York would have consequences in New York. It would not be unfair to ask AESA to appear in court in New York to answer for its actions that caused injury here. This court concludes that jurisdiction over AESA in New York would not offend traditional notions of fair play and substantial justice. Jurisdiction is therefore appropriate.
IV. Motion to Dismiss for Failure to State a Cause of Action under CPLR 3211(a)(7)
A. Standard of Law
On a motion to dismiss a complaint for failure to state a cause of action, pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. See Goshen v. Mutual Life Ins. Co. of New York, 98 N.Y.2d 314, 326 (2002). The court must accept as true the facts alleged in the complaint, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. See McGill v. Parker, 179 A.D.2d 98, 105 (1st Dep't 1992). In assessing a motion under CPLR 3211(a)(7), a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one. Leon, 84 N.Y.2d at 87–88 (internal quotations and citations omitted).
Plaintiff's complaint alleges: (1) that Defendants provided false information about Plaintiff's operations to educational officers at military bases and to current students, and harassed educational partners (Amended Complaint, ¶ 11); (2) that Defendant James Doyle physically and verbally harassed students and instructors at a training location in California (Amended Complaint, ¶ 12); and (3) that Defendants instituted frivolous ligation against MT & E in California. (Amended Complaint, ¶ 13).
The complaint does not clearly state a cause of action, and on reply to Defendants motion to dismiss, Plaintiff alludes to a claim for unfair competition. Affirmation in Opposition, ¶¶ 4, 5, 8, 10.
The court will attempt to parse the language of the complaint and the affidavits supporting the opposition to the motion to dismiss to determine if a cause of action has been sufficiently pled.
1. Defamation
MT & E accuses AESA, through its CEO James Doyle, of providing false information about MT & E to its students and potential customers. Amended Complaint, ¶ 11. Unfortunately, MT & E does not specify a resulting cause of action. This court suggests that these allegedly false statements may give rise to a cause of action for defamation, or one of its derivatives, such as slander or trade libel. However, defamation of character is explicitly excluded from the types of tortious acts outside the state that confer long-arm personal jurisdiction. SeeCPLR § 302(a)(3); Pontarelli v. Shapero, 231 A.D.2d 407, 410 (1st Dep't 1996). Because this court would not have personal jurisdiction over AESA on a cause of action for defamation, we will not address the sufficiency, or lack thereof, of MT & E's pleadings for a defamation claim.
2. Common Law Claim for Tortious Interference with Business Relations
MT & E inartfully expresses a claim for either or both tortious interference with contractual relations and tortious interference with prospective business relations. The underlying wrongful acts are the allegations of “providing false information” and the physical and verbal harassment of students and instructors by James Doyle. Amended Complaint, ¶¶ 10, 11.
However, both possible causes of action fail. Plaintiff alleges no specific contract or prospective business relationship.
Though this court has no jurisdiction over defamation claims, where multiple causes of action arise from the same alleged actions of the defendant, each cause of action must be analyzed separately by the Court regarding long-arm personal jurisdiction ( see, e.g., Nasso v. Seagal, 263 F.Supp.2d 596 (E.D.NY 2003); Cosmetech Int'l v. Der Kwei Enter. & Co., 943 F.Supp. 311 (S.D.NY 1996). In Competitive Techs., Inc. v. Pross, 14 Misc.3d 1224[A], (Sup.Ct., Suffolk County 2007), where two causes of action arose from the same libelous statements posted on the internet, the court threw out defamation cause of action because it was explicitly barred under § 302(a)(3) but dismissed the intentional infliction of emotional distress claim only after an analysis of whether the facts met § 302(a)(3) requirements. Therefore, the court will independently analyze the remaining possible causes of action, even though they are based on allegations of defamation.
Tortious interference with contract requires the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third party's breach of contract without justification, actual breach and damages. See Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 424 (1996). Because MT & E does not plead the existence of a valid contract between itself and any third party, this claim has not been properly pled. The court need not address the further elements of this tort.
Tortious interference with prospective economic relations requires an allegation that plaintiff would have entered into an economic relationship but for the defendant's wrongful conduct. See Vigoda v. DCA Prods., Plus Inc., 293 A.D.2d 265 (1st Dep't 2002). In Vigoda, the plaintiff's cause of action was dismissed because it could not name the parties to any specific contract it would have obtained had the defendant not engaged in its alleged wrongful behavior. Here, MT & E has similarly failed to satisfy the “but for” causation required by this tort. Plaintiff does not identify any specific contract or business relationship that was harmed. Mere mention of a loss of students from Verizon, without any mention of the specific contract or business relationship MT & E had or hoped to have with Verizon, is insufficient. This potential cause of action therefore also has not been properly pled.
3. Malicious Prosecution or Abuse of Process
MT & E alleges that “Defendants, in furtherance of their scheme to destroy MT & E's business, instituted frivolous litigation against plaintiff MTE and several of its employees in California” and that “MTE was compelled to retain counsel in California to defend against the frivolous litigation and incurred great expense.” Amended Complaint, ¶ 13. Providing Plaintiff with all possible inferences, two possible causes of action arising from this allegation are malicious prosecution and abuse of process.
Malicious Prosecution
The elements of the tort of malicious prosecution are: (1) the prosecution of a civil action against the plaintiff; (2) by or at the instance of the defendant; (3) without probable cause; (4) with malice; (5) which terminated in favor of the plaintiff; and (6) which caused special injury. See Castro v. East End Plastic, Reconstructive & Hand Surgery, P.C., 47 AD3d 608, 609 (2d Dept 2008).
AESA admits it instituted civil ligation against MT & E in California, thereby satisfying the first two elements. Doyle Affidavit, ¶¶ 10, 11, Ex A.
However, MT & E does not allege any facts regarding the third element necessary for this claim, that AESA filed its lawsuit without probable cause. Probable cause “consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty. Because obviously less in the way of grounds for belief will be required to justify a reasonable [person] in bringing a civil rather than a criminal suit, when the underlying action is civil in nature the want of probable cause must be patent.” Fink v. Shawangunk Conservancy, Inc., 15 AD3d 754, 755 (3d Dep't 2005) (internal citations omitted). MT & E makes no allegation in the complaint or in its opposition to the motion to dismiss that the underlying action lacked reasonable grounds. In Defendants' memorandum in support of its motion to dismiss, AESA claims that several of its former employees had wrongfully provided AESA's confidential information to MT & E, which MT & E used to run competing classes. Defendants' Memorandum in Support of Motion to Dismiss (“Defendants' Memo”), p. 1). In cases where the court is considering extrinsic evidence on a CPLR 3211 motion, “the allegations are not deemed true ... the motion should be granted where the essential facts have been negated beyond substantial question by the affidavits and evidentiary matter submitted.” Blackgold Realty Corp. v. Milne, 119 A.D.2d 512, 513 (1st Dep't 1986), aff'd69 N.Y.2d 719 (1986). AESA's motion clearly states reasons for bringing its previous suit that would justify a reasonable person's belief that MT & E was liable in tort. Therefore, Plaintiff does not sufficiently plead the third element of lack of probable cause.
The fourth element of malice is pled satisfactorily if the Plaintiff alleges that the defendant had “a purpose other than the adjudication of a claim” when filing the underlying action. Restatement (Second) of Torts § 674; see Engel v. CBS, Inc., 93 N.Y.2d 195, 204 (1999] ). MT & E claims the purpose of the California lawsuit was to destroy MT & E's business. Plaintiff therefore sufficiently pleads the element of malice.
As to the fifth element of the tort of malicious prosecution, that the civil prosecution terminate in plaintiff's favor, defendants urge that because AESA voluntarily dismissed the California lawsuit before trial, it was not terminated in favor of MT & E. Defendants' Memo, p. 8. However, the cases cited by AESA in support of this position do not discuss whether a voluntary dismissal by the plaintiff in the underlying action qualifies as a legal termination in the plaintiff's favor. The question of whether such a voluntary dismissal qualifies as termination in favor of the plaintiff is unresolved in New York. It is settled that if the case was voluntarily dismissed as a result of a settlement or compromise, it would not support a claim for malicious prosecution. See Smith–Hunter v. Harvey, 95 N.Y.2d 191, 196–97 (2000). Here, there is no evidence that the dismissal stemmed from such an agreement. Assuming the other elements are met, if “the earlier action was terminated with the consent of the defendant but without inducement or compromise” then the complaint sufficiently alleges malicious prosecution. Louvad Realty Corp. v. Anfang, 267 A.D. 567, 568 (1st Dep't 1944).
Finally, MT & E does not allege any special injury. Special injury is “some concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit.” Engel v. CBS, Inc., 93 N.Y.2d 195, 205 (1999). Here, MT & E alleges only that it suffered the expense of defending against the lawsuit in California, which is decidedly not special.
An attempt to wrangle a cause of action for malicious prosecution from the vague allegations in MT & E's complaint fails. Plaintiff has not pleaded the necessary elements of probable cause, malice and special injury.
Abuse of Process
Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal; (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 Greco v. Christoffersen, 70 AD3d 769, 770 (2d Dep't 2010). However, MT & E makes no allegation that AESA misused the civil process to achieve an objective outside the proper scope of the commenced litigation. See Hornstein v. Wolf, 67 N.Y.2d 721, 723 (1986). Despite this court's liberal reading of the complaint, it is evident that MT & E also fails to state a claim for abuse of process.
V.Conclusion
Accordingly, it is
ORDERED that defendants Aviation Ground Schools of America d/b/a Aviation & Electronic Schools of America, Carrie Courter, James Doyle and Jamie Doyle's motion (sequence no. 001) to dismiss Plaintiff's Amended Verified Complaint is granted for lack of personal jurisdiction for that part of the complaint against Carrie Courter, James Doyle and Jamie Doyle; and it is further
ORDERED that defendants Aviation Ground Schools of America d/b/a Aviation & Electronic Schools of America, Carrie Courter, James Doyle and Jamie Doyle's motion (sequence no. 001) to dismiss Plaintiff's Amended Verified Complaint is granted as against AESA for plaintiff's failure to state a cause of action. Plaintiff is granted leave to file and serve a second amended complaint within thirty (30) days after service of a copy of this order with notice of entry. The amended complaint must include allegations sufficient to meet every element of at least one specified cause of action.
This constitutes the decision and order of the court.