59 A.D.2d 660 | N.Y. App. Div. | 1977
Order, Supreme Court, New York County, entered June 3, 1977, denying the motion of defendants-appellants to dismiss the complaint for failure to state a cause, unanimously reversed, on the law, the motion granted and the complaint dismissed, without costs and without disbursements. In January, 1977, plaintiff-respondent Rosenwald, through plaintiff-respondent Davis as her attorney, commenced an action in Civil Court against Consolidated Edison Company, a defendant-appellant in the instant case, based upon an allegedly wrongful cutoff notice. Shortly thereafter, Rosenwald inserted an anonymous advertisement in a daily newspaper asking others similarly situated to telephone to her attorney. Defendant-appellant Williams, general attorney for Con Ed, sent the advertisement to the Grievance Committee of the Association of the Bar, alleging impropriety and professional ethical violation, and requesting investigation and determination in respect thereof. Some weeks later, counsel to the committee, by letter, effectively disposed of the matter as not violative of an ethical canon, the advertisement having been "placed by Mr. Davis’ client without his active participation.” The foregoing was set forth in the complaint here under review, added to which were allegations that the letter was sent in behalf of Con Ed, without probable cause "to intimidate * * * Davis from further representing * * * Rosenwald or to otherwise bring litigation against” Con Ed, by reason of which "Davis was put to the time and expense of defending” with consequent "loss of business, humiliation and emotional injury.” Defendants’ conduct was said to have been an attempt "to deprive * * * Rosenwald of her right to counsel” and to have "delayed her in the prosecution of the aforesaid [Civil Court] litigation.” No attempt was made to state separately and number the causes being prosecuted, although the indorsement on the summons characterizes the suit as "for interference with attorney-client relationship and malicious prosecution.” As gleaned from plaintiffs’ briefs, the complaint seems to embody elements of other causes: defamation, deprivation of civil rights (US Code, tit 42, § 1983), and prima facie tort. As plaintiff-respondent Davis states in his brief, "This is not a libel or slander action.” Nor is it one for "deprivation of
