Couri v. Pavia
(Sup. Ct. NY Cty. 2/8/05)
We represented: Defendant/Landlord
Joan A. Madden, J.
DECISION and ORDER Defendants move, by order to show cause, for an order (1) granting summary judgment dismissing the third, fourth and fifth cause of actions of action for failure to state a cause of action, and (2) adjourning the trial, of this action. Plaintiff James Couri ("Couri"), who is prose, opposes the motion and cross moves to "remove" the counsel for defendants in this action, and, and to dismiss defendants' counterclaims.
This action arises out of a landlord tenant dispute. Couri resides at 18 East 73rd Street, New York, NY (the "Building") in Apartment 3-B pursuant to a Lease dated September 27, 1996 between Couri, as tenant, and defendant George Pavia ("Pavia"), as landlord. Couri lives in the Apartment with his wife, Marlene Couri (together "the Couris"). Pavia also resides in the Building with his wife, defendant Antonia Pavia ( 'the Pavias"). The Pavias own the Building. Defendants Julian Pavia and Phillipa Pavia are the adult children of the Pavias and also reside in the Building. The Pavias maintain that Couri began to harass them after they refused to sell him the Building. Couri counters that the Pavias began to harass him after he brought proceeding before the Department of Housing Preservation and Development ("DHCR") which resulted in a finding that the Building was subject to the Rent Stabilization Laws.
In 2002, shortly after the DHCR's determination, the Pavias commenced an action under Index No. 124625/02 against the Couris ("the 2002 action"), by order to show cause, in which plaintiffs sought to compel access to defendants' apartment in order to fix a water leak. The parties stipulated to give plaintiffs access on the return date of the order to show cause, in addition to access to the Couris' apartment to repair the leak, the complaint sought damages in the amount of $25,000, allegedly caused as a result of the water leak, and an order directing the Couris to provide the Pavias with a set of keys to their apartment.
The Couris answered the complaint and asserted five counterclaims apparently alleging (1) fraud in the inducement in connection with the lease of the apartment and fraud and "cover-ups" regarding alleged violations of the Couris' tenancy, (2) harassment by the Pavias and interference with quiet enjoyment of the apartment, (3) abuse of process, malicious prosecution in connection with proceedings before the DHCR and in the action before the court, and false arrest, (4) defamation and slander, (5) various acts of tortious conduct warranting the issuance of a permanent injunction. The Pavias were subsequently granted leave to amend their complaint to include a claim for ejectment based on allegations that Couri's conduct constituted a nuisance.
In 2003, Couri brought an action under Index No. 101709/03 ("the 2003 action"), containing five causes of action, which are virtually identical to the counterclaims, except that in addition to the Pavias the action names the Pavias' attorneys as defendants.
In the meantime, the Pavias sought and obtained a protective order against Couri from the criminal court. Subsequently, based on complaints filed by the Pavias a criminal proceeding was brought against Couri charging him with aggravated harassment in the second degree and harassment in the second degree, the criminal complaint was subsequently dismissed upon motion of the People in or about April 2004.
In or about April 28, 2004, Couri commenced another action under Index No. 106226/04 ("the 2004 action"). The first two causes of action were similar to those contained in the 2003 action. The third cause of action, apparently for malicious prosecution, abuse of process, all false arrest is similar to the third cause of action in the 2003 action, except that it focused on the criminal complaint filed by the Pavias and included allegations regarding the complaint's dismissal.1
By decision and order dated October 12, 2004, the court denied defendants' motion to dismiss the 2004 action on the grounds that Couri's claims in the most recent action were virtually identical to those in the Counterclaims to the 2003 action.2 Instead, the court found that it was more appropriate to consolidate the 2003 and 2004 actions. At the same time, as the counterclaims asserted by Couri in the 2002 action were identical to his claims in the 2003 action, the court dismissed the counterclaims.
This motion to dismiss the third, fourth and fifth causes of action in the 2003 action was made prior the court's consolidation of the 2003 and the 2004 actions. Thus, the court will consider the third, fourth and fifth causes of action as alleged in the 2003 action, which are now part of the consolidated action.
The Motion
The third cause of action seeks to recover for damages alleged abuse of process and malicious prosecution in connection with the proceedings before the DHCR, in the in connection with the defendants' claims before this court and Criminal complaint filed with the District Attorney's Office.
"Abuse of Process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse of justification, and (3) use of process in a perverted manner to obtain a collateral objective." Curiano v Suozzi, 63 NY2d 113, 116 (1984). Legal process is "a direction or demand that the person to whom it is directed…perform or refrain from doing some proscribed act." Julian J. Studley, Inc. v Lefrak, 41 NY2d 881,884 (i977), quoting WilIiams v Williams, 23 NY2d 592, 596 (1969); see also, Buccieri v Franzreb, 201 AD2d 356, 358 [1st Dept 1994]). Moreover, the institution of a civil action by summons and complaint is not sufficient to state a claim for abuse of process, even when an action is commenced with malicious intent. Walentas v. Johnes, 257 AD2d 352 (1st Dept 1999). Accordingly, allegations in the third cause of action regarding defendants' conduct in connection with the DHCR proceeding and the claims before this court do not give rise to a claim for abuse of process.
Couri has also failed to state a claim for malicious prosecution arising out of the DHCR proceeding or the claims before this court. To state a cause of action for malicious civil prosecution, the plaintiff must prove the initiation of a judicial proceeding, a termination in its favor, lack of probable cause, malice and special injury. See Engel v. CBS, Inc., 93 NY2d 195, 2004 (1999).
In this case, Couri, and not the defendants, initiated the DHCR proceeding. And, with respect to the actions before this court, the malicious prosecution claim is premature as there has not been a termination in Couri's favor. Accordingly, the court need not reach whether Couri has satisfied the special injury requirement.
In addition, the third cause of action cannot be reconstituted to state a claim for prima facie tort. "The requisite elements for a cause of action sounding in prima facie tort include (1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, (4) by an act or series of acts which are otherwise legal." Del Vecchio v. NeIson, 300 AD2d 277 (2d Dept 2002). To recover for prima facie tort, a plaintiff must plead special damages in the form of a "specific and measurable loss." Freihofer v. Hearst Corp., 65 NY2d 135, 143 (1985). In addition, "[w]here relief may be afforded under traditional tort concepts, prima facie tort may not be invoked as a basis to sustain a pleading, which otherwise fails to state a cause of action in conventional tort. Id.
Moreover, the third cause of action does not state a claim for false arrest against the defendants who, as civilian complainants; allegedly sought "police assistance or furnishing information to law enforcement authorities who arc then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed." Du Chateau v. Metro-North Commuter Railroad Co., 253 AD2d 128, 131 (1st Dept 1999).
Furthermore, as the third cause of action does not seek special damages, it does not state a claim for prima facie tort. Additionally, New York courts have consistently rejected claims for prima facie tort, which are based on a defendant's alleged malicious prosecution of judicial proceedings. See Curiarizo v. Suozzi, 63 NY2d 113, 118-119 (1984); Lember v. John Blair Communications, Inc., 251 AD2d 205 (1st Dept 1998); Belsky v. Lowenthal, 62 AD2d 319 (1st Dept 1978). As the Court of Appeals explained in Curianzo v. Suozzi, prima facie tort cannot be used "to avoid the stringent requirements we have set forth traditional torts, such as malicious prosecution, requirements which are necessary to effectuate strong public policy of open access to the courts for all parties without fear of reprisal in the form of retaliatory lawsuits." Curianzo, 63 NY2d at 118-119.
Next, although the third cause of action in the 2003 action states a claim for abuse of process and malicious prosecution with respect to the criminal complaint filed against Couri, it is duplicative of the more complete third cause of action asserted in the 2004 action, and thus this aspect of the case should also be dismissed.
The fourth cause of action seeks to recover damages for libel and slander, in connection with certain statements about Couri made verbally and in letters by various defendants.
The elements of a claim for defamation are "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." Dillon v City of New York, 261 AD2d 34, 38 (1st Dept 1999)(citation omitted). CPLR 3016 also requires that "'the particular words complained of be set forth in the complaint. Id. In addition, the complaint must allege "the time, place and manner of the false statement and specify to whom it was made." Id.
Here, the complaint does not allege that Couri suffered any special damages which contemplate "the loss of something having economic or pecuniary value (citation omitted)." See Liberman v Gelstein, 80 NY2d 429, 434-435 (1992). Accordingly, to survive a dismissal motion, the claim must allege that statements constitute defamation per se in that they (i) charge plaintiff with a serious crime, (ii) tend to injury another in his trade, business or profession, (iii) indicate that plaintiff has a loathsome disease, or (iv) impute unchastity to a woman. Id. at 435.
In this case, the alleged statements do not fall within any of the above category. In general, name calling has been held not to constitute slander or slander per so. See Depuy v St. John Fisher College, 129 AD2d 972 (4th Dept), appeal denied, 70 NY2d 602 (1987). Although certain of the statements, such as "Couri is a swindler," "Couri is a crook" and "Couri is a bad man "could interpreted of accusing him of criminal activity, they do not constitute defamation per se as they' do not charge him with a sufficiently identifiable offense. See Privitera v. Phelps, 79 AD2d 1 ( 4th Dept), appeal dismissed, 53 NY2d 796 (1981); Klein v. McGaulev, 29 AD2d 418 (2d Dept 1968).
The fourth cause of action is also insufficient to state a claim for intentional infliction of emotional distress. To state such a claim, it must be shown that the alleged conduct was "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 society." American I-Irene Products Corp., 58 NY2d 293,303 (1983). In this case, the allegations in the complaint regarding defendants' alleged conduct are insufficient to meet this threshold. See e.g. Spinale v. Guest, 270 AD2d 39, 40 (1st Dept 2000).
Moreover, to the extent the fourth cause of action alleges harassment by the defendants, the court notes that New York does not recognize such a cause of action. See Jacobs v 200 East 36 a' Owners Corp., 281 AD2d 281 (1st Dept 2001); Goldstein v. Tabb, 177 AD2d 470, 471 (2d Dept 1991), lv denied, 80 NY2d 753 (1992).
The fifth cause of action alleges various acts of tortious conduct and seeks a permanent injunction to enjoin defendants from harassing or communicating with Couri or his family members and from filing any suit against Couri and his wife under any circumstances or interfering with Couri's business. At the outset there is no basis for imposing a prior restraint on speech under the circumstances here. See e.g. Lowinger v Lowinger, 264 AD2d 763 (2d Dept 1999). Moreover, as indicated above, there is no cause of action for harassment. See Jacobs v 200 East 36th Owners Corp., 281 AD2d 281. In addition, general allegations that defendants are interfering with Couri's business are insufficient to state a claim, and there is no basis at this time to restrain defendants from filing suit without prior court approval. Accordingly, the fifth cause of action must be dismissed.
The Cross Motion
Couri cross moves for an order (i) removing Itkowitz & Harwood firm and its attorneys from representing defendants, and (ii) dismissing in defendants' counterclaims. Couri seeks to remove Itkowitz & Harwood and its attorneys from-representing defendants on the ground that they are named as defendants to the action and may be called as witnesses, and based on their alleged violation of various disciplinary rules. As set forth in this court's decision and order dated January 20, 2004, and again in its decision and order dated October 12, 2004, Couri has not stated a sufficient basis for disqualification. Likewise, Couri's unsupported allegations regarding the violation of disciplinary rules does not provide grounds for requiring defendants to change counsel.
Couri also seeks to dismiss defendants' counterclaims seeking (1) costs and sanctions pursuant to NYCRR ? 130.1.1(e), based on Couri's allegedly "frivolous conduct," and (2) to enjoin Couri from commencing any further actions against defendant without prior leave of Court.
The counterclaim for costs and sanctions must be dismissed as although in an appropriate case the court may assess sanctions, there is no independent cause of action for such relief. Murphy v. Smith, 4 Misc3d 1029 (Sup Ct NY Co. 2004); Entertainment Partners Group, Inc. v. Davis, 155 Misc2d 894, 905 (Sup Ct NY Co. 1992), aff'd, 198 AD2d63 (Ft Dept I993).
The counterclaim to enjoin Couri from commencing further actions is dismissed as moot as in its decision and order dated October 12, 2004, the court ordered that "Couri shall not bring any further actions arising out of, or any way related to, this dispute, including actions against any new defendants without seeking permission from this court by way of order to show cause."
Conclusion in view of the above, it is
ORDERED that defendants' motion is granted to the extent of dismissing and severing from the consolidated action the third, fourth and fifth causes of action once contained in the 2003 action (Index No. 101709/03); and it is further
ORDERED the consolidated action shall continue with respect to the remaining causes of action; and it is further
ORDERED that the counterclaims asserted by defendants in the 2003 action ('Index No. 101709/09); and severed and dismissed.
DATE: February 8, 2005
J.S.C.
1 In addition, the 2004 action named the Pavias adult children and two corporations which are allegedly controlled by and/or are the alter egos of George Pavia as defendants.
2The October 12, 2004 decision erroneously stated that the 2004 action contained five causes of action instead of three), and that these causes of action were virtually identical to the five counterclaims asserted by Couri in the 2002 action, and the five causes of action asserted in the 2003 action. Nonetheless, the court did not dismiss the claims in the 2004 action, finding that the since the parties in the 2003 and 2004 actions were different that it was more appropriate to consolidate the two actions.