Opinion
INDEX NO. 151872/2019
10-03-2019
WENGUI GUO, Plaintiff, v. SOHO CHINA LTD., SHIYA PAN Defendant.
NYSCEF DOC. NO. 19 PRESENT: HON. PAUL A. GOETZ Justice MOTION DATE 09/05/2019 MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
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, 18 were read on this motion to/for DISMISS.
This action arises out of a 2017 defamation lawsuit brought by defendants SOHO China Ltd., and its principal, defendant Shiya Pan, against plaintiff Guo Wengui alleging that Mr. Wengui made numerous false and defamatory statements about SOHO and Mr. Pan's real estate business and its connection to the Chinese government (SOHO China Ltd. v. Guo Wengui, Index No. 155066/2017). While Mr. Wengui's motion to dismiss was pending, defendants SOHO and Mr. Pan filed a notice to voluntarily discontinue the action without prejudice on February 23, 2018. Almost a year later, Mr. Wengui commenced this action, asserting causes of action for malicious prosecution and abuse of process based on the 2017 defamation suit. Defendants now move pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint with prejudice.
In order to state a claim for malicious prosecution based upon a prior civil action, plaintiff must show (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 initiating the prior proceeding; (4) actual malice and (5) special injury, which means that the prior action interfered with plaintiff's person or property, including but not requiring the issuance of provisional remedies, such as arrest, attachment or an injunction (Cantalino v. Danner, 96 N.Y.2d 391 [2001]; Engel v. CBS, Inc., 93 N.Y.2d 195 [1999]; Purdue Fredrick Co. v. Steadfast Ins. Co., 40 A.D.3d 285 [1st Dep't 2007]). Further, "when the underlying action is civil in nature the want of probable cause must be patent" (Fink v. Shawangunk Conservancy Inc., 15 A.D.3d 754, 755 [3d Dep't 2005]).
Defendants first argue that plaintiff cannot demonstrate that the prior lawsuit was terminated in his favor. "To show a termination in his favor, the plaintiff must prove that the court passed on the merits of the charge or claim against him under such circumstances as to show his innocence or nonliablity, or show that the proceedings were terminated or abandoned at the instance of the defendant under circumstances which fairly imply the plaintiff's innocence." Pagliarulo v. Pagilarulo, 30 A.D.2d 840, 840 (2d Dep't 1968). Further, a plaintiff in a malicious prosecution action must show, as a threshold matter, that the prior proceeding was finally terminated. Smith Hunter v. Harvey, 95 N.Y.2d 191, 197 (2000). This is because it cannot be known whether the prior action was in fact unfounded until it is terminated and to avoid conflicting determinations as to the same transaction. Id.
Here, the prior action was voluntarily discontinued by defendants without prejudice. As such, it is not a final termination of the matter as defendants are free to commence another lawsuit against plaintiff on the same grounds. CPLR 3217; Smith-Hunter, 95 N.Y.2d at 198 (a dismissal without prejudice qualifies as a final favorable termination only if the dismissal indicates the formal abonnement of the proceedings); Brown v. Sears Roebuck and Co., 297 A.D.2d 205, 211 (1st Dep't 2002) (disposition of an action "which does not terminate it but permits it to be renewed" cannot serve as a basis for a malicious prosecution claim); Ramgopal v. Singh, 19 Misc.3d 141(A) (1st Dep't App. Term. 2008). Further, defendants' voluntary discontinuance of the prior action, in itself, is not a circumstance that fairly indicates Mr. Wengui's innocence and thus is insufficient to support this claim. Rubin v. Lufty, 25 Misc.3d 1242(A), at *8 (Sup. Ct. N.Y. Cty. 2009); see also Sipsas v. Vaz, 50 A.D.3d 878 (2d Dep't 2008). Accordingly, the malicious prosecution claim must be dismissed.
The abuse of process claim similarly does not survive. "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" (Curiano v. Suozzi, 63 N.Y.2d 113, 116 [1984]). Further, "the gist of the action for abuse of process lies in the improper use of process after it is issued" (Williams v. Williams, 23 N.Y.2d 592, 569 [1969] [internal citations and quotations omitted]). Here, there is no indication that "process" was perversely utilized by defendants to obtain a collateral objective. Rather, in his brief in opposition to the motion, Mr. Wengui admits, in what appears to be a circular argument, that the purpose of the prior lawsuit was to protect defendants' brand and reputation. Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss the Complaint, p. 21. This is not a collateral objective and is indeed the primary purpose of bringing a claim for defamation and seeking injunctive relief. I.G. Second Generation Partners v. Duane Reade, 17 A.D. 206, 207 (1st Dep't 2007) (stating that there was no indication that "process" was perversely utilized by defendants where defendants in prior action sought declaration that they were entitled to possession of the subject premises which relief was entirely appropriate and not collateral to defendants' objective of securing an exclusive right to the premises). Moreover, the allegation that defendants were motivated by malice and hatred in bringing the prior action is insufficient to give rise to a cause of action for abuse of process (I.G. Second Generation, 17 A.D.3d at 207). Accordingly, this cause of action must also be dismissed.
Finally, plaintiff's request for leave to replead is denied as he has failed to specify how the deficiency in his pleadings can be cured with an amended pleading. Moreover, as discussed above, plaintiff will be unable to show this as it has already been determined that defendants' voluntary discontinuance of the prior action was not a final termination of the matter on the merits and that, as plaintiff admits, the prior action was not commenced for the purpose of obtaining a collateral objective. Accordingly, it is
ORDERED that the motion to dismiss is granted with prejudice and the complaint is dismissed, with costs and disbursements to defendants, and the Clerk shall enter judgment accordingly. 10/3/19
DATE
/s/ _________
PAUL A. GOETZ, J.S.C.