619 N.Y.S.2d 871 | N.Y. App. Div. | 1994
Cross appeals (transferred to this Court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Wood, J.), entered August 17, 1993 in Westchester County, which partially granted defendant’s motion to dismiss the complaint.
The facts underlying this action, as alleged in the com
Plaintiff’s complaint alleges four causes of action: (1) abuse of process and (2) malicious prosecution in connection with defendant’s initiation of the Family Court Act article 8 proceeding and the issuance of the summons and order of protection in connection therewith; (3) breach of contract, based upon defendant’s failure to pay money and deliver personal property allegedly due plaintiff under the terms of the parties’ 1987 separation agreement; and (4) defamation based upon defendant’s November 18, 1991 statements to plaintiff’s supervisor that plaintiff had "harassed” and "shoved” her and that plaintiff’s distribution of the written materials concerning defendant was "illegal” and constituted a crime and, further, statements made in sworn affidavits submitted in connection with the Family Court proceeding. Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7). Supreme Court granted the motion with respect to the first two causes of action and denied it with respect to the remaining causes of action. The parties cross-appeal.
Initially, it is our view that Supreme Court properly dis
We also agree with Supreme Court’s determination dismissing the second cause of action alleging malicious prosecution. As applied with regard to a civil action or proceeding, the elements of that tort are the institution of an action or proceeding by the defendant, malice as the motivating factor, an absence of probable cause to support the proceeding, and termination of the proceeding in favor of the plaintiff (see, Burt v Smith, 181 NY 1, 5, writ dismissed 203 US 129; Hornstein v Wolf, 109 AD2d 129, 132, affd 67 NY2d 721; see also, Colon v City of New York, 60 NY2d 78, 82; see generally, Prosser and Keeton, Torts § 120 [5th ed]). “Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty [citations omitted]” (Colon v City of New York, supra, at 82). Because “obviously less in the way of grounds for belief will be required to justify a reasonable man in bringing a civil rather than a criminal suit” (Prosser and Keeton, Torts § 120, at 893 [5th ed]), when the underlying action is civil in nature the want of probable cause must be patent (see, Prosser and Keeton, Torts § 120, at 893 [5th ed]; see also, Ford Motor Credit Co. v Hickey Ford Sales, 62 NY2d 291, 303-304). Significantly, the issuance of a temporary injunction or similar judicial recognition of the merit of the
It is our view that Supreme Court should have dismissed plaintiff’s defamation cause of action as well. The purported statements that plaintiff "shoved” and "harassed” defendant and that "what he is doing is illegal” "did not address the subject of the plaintiff’s ability to. practice his profession and were not disparaging of his mental capacity and competence as a lawyer” (Weinstock v Goldstein, 190 AD2d 847, 848, lv denied 81 NY2d 711; cf., Van Lengen v Parr, 136 AD2d 964, 965). That being the case, defendant’s statements were not defamatory per se and, thus, not actionable in view of plaintiff’s failure to allege special damages (see, Aronson v Wiersma, 65 NY2d 592, 594; Weinstock v Goldstein, supra). Further, the statements made.in papers filed in connection with the Family Court proceeding and pertinent thereto were privileged as a matter of. law (see, Martirano v Frost, 25 NY2d 505; R.W.P. Group v Holzberg, 202 AD2d 410; Dougherty v Flanagan, Kelly, Ronan, Spollen & Stewart, 145 AD2d 461).
As a final matter, we agree with Supreme Court’s denial of defendant’s motion to dismiss the contract cause of action and conclude that Supreme Court did not abuse its discretion in denying plaintiff leave to replead his causes of action. Plaintiff failed to disclose evidentiary facts that would justify granting such a request (see, Ott v Automatic Connector, 193 AD2d 657, 658). The parties’ remaining contentions have been considered and rejected.
Cardona, P. J., White and Peters, JJ., concur. Ordered that the order is modified, on the law, with costs to defendant, by reversing so much thereof as denied defendant’s motion to dismiss the fourth cause of action; motion granted in that regard, and said cause of action dismissed; and, as so modified, affirmed.