[*1]
Hebrew Institute for the Deaf & Exceptional Children v Kahana
2008 NY Slip Op 52001(U) [21 Misc 3d 1107(A)]
Decided on October 3, 2008
Supreme Court, Kings County
Rivera, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through October 21, 2008; it will not be published in the printed Official Reports.


Decided on October 3, 2008
Supreme Court, Kings County


Hebrew Institute for the Deaf and Exceptional Children, Plaintiff

against

Abraham M. Kahana, MARK KAPLAN, CHAIM CISNER, AVRUHUM M. DONNER, ISRAEL EICHENHOLTZ, STEVEN HERSKO, LEIB PINTER, JACOB SHAYOVITZ, ZUNDEL ZELMANOVITCH, NUSSIA TESSLER, INNA MIROVICH, AARON STEIN, DAVID NEIDERMAN, ISADORE FISHER, AND MARY ALICE REILLY, Defendants.




27823/06

Francois A. Rivera, J.



Third-party defendants Leon and Noah Brickman (hereinafter the movants or Brickmans), move for an order, pursuant to CPLR §3211 (a)(7), dismissing the Third-Party complaint against them for failure to state a cause of action. The Brickmans also move pursuant to CPLR §8303-a and Section 130.1.1 of the Rules of the Chief Administrator of the Courts, awarding them monetary sanctions against Jacob Shayovitz (hereinafter Shayovitz)and his attorney for frivolous conduct. Shayowitz opposes the motion.

PLEADINGS


On April 9, 2008, Shayovitz commenced this third-party action by filing a third party complaint against the Brickmans for alleged injuries he suffered as a result of the commencement of the underlying action by Hebrew Institute for the Deaf and Exceptional Children against him (hereinafter the HIDEC action). Shayovitz claims that Leon Brickman, as president, and Noah Brickman, as Director of HIDEC caused process to issue against him through the commencement [*2]of the instant action, Hebrew Institute for the Deaf and Exceptional Children v. Kahana et al. (hereinafter the HIDEC action).

In lieu of answering the third-party complaint against them, the Brickmans move, pursuant to CPLR §3211(a)(7), to dismiss the third party complaint.

In his third-party complaint Shayovitz alleges that the Brickmans were aware that he had no knowledge of and played no part in the embezzlement of HIDEC's funds. Shayovitz further alleges that the Brickmans commenced the HIDEC action against him with this knowledge and with the intent, inter alia, to pressure him into an unfair settlement. Shayovitz claims that the conduct of the Brickmans supports a cause of action for abuse of process and for intentional infliction of emotional distress.

MOTION PAPERS


Brickmans' motion papers consist of their attorney's affirmation and three exhibits. Exhibit A is copy of the verified complaint. Exhibit B is a copy of this Court's decision and order dated October 9, 2007, on the HIDEC action, cited as 17 Misc 3d 1110(A). Exhibit C is a copy of the Shayovitz' Third Party Complaint.

Shayovitz' opposition consists of a memorandum of law, his affidavit, a copy of discharge notice from North Shore University Hospital's discharge Shayovitz from their care dated June 2, 2008, and an affidavit of service.

The Brickmans replied with an affirmation of counsel containing copies of two letters sent to Shayovitz' counsel.

DISCUSSION

In seeking an order to dismiss, the Brickmans assert that Shayovitz's third-party complaint against them is completely without merit in law or fact. Plaintiff Shayovitz contends in his memorandum of law in opposition to the motion to dismiss, that the allegations made by Brickmans in the HIDEC action were knowingly baseless. Shayovitz also argues that the allegations were made to cause him grievous harm and emotional distress.

CPLR §3211 (a)(7) permits a party to move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action. In assessing this motion, the court must accept the allegations of the complaint as true and afford the plaintiffs the benefit of every favorable inference (Stanton v. Carrara, 28 AD3d 642 [2nd Dept. 2006]). In assessing this motion, the court may freely consider affidavits submitted by the plaintiff (Nonnan v. City of New York, 9 NY3d 825 [2007].

ABUSE OF PROCESS


Professor Prosser explains in his treatise on torts, "Abuse of process is the misuse or misapplication of process justified in itself for an end other than that for which is was designed." (Prosser and Keaton on Torts §121). In a broader sense, "abuse of process may be defined as a misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process." (Board of Educ. of Farmingdale Union Free School Dist v. Farmingdale Classroom Teachers Ass'n. Local 1889, 38 NY2d 397, 400 [1975]).

Professor Prosser further states, "the purpose for which the process is used, once it is issued, is the only thing of importance." Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal (2) an intent to harm without excuse or justification and (3) use of process in a perverted manner to obtain a collateral objective [*3](Curiano v. Suozzi, 63 NY2d 113, 116 [1984]). First, the process used must involve "an unlawful interference with one's person or property" (Curiano v. Suozzi, supra, 63 NY2d at 116 citing Williams v. Williams, 23 NY2d 592, 596. Insofar as the only process issued in the action was the filing and service of third party summons and complaint against Shayovitz, there was no unlawful interference with Sayovitz' persons or property because the institution of a civil action by summons and complaint is not legally considered process capable of being abused (see Mago, LLC v. Singh, 47 AD3d 772 [2nd Dept 2008] citing Williams v. Williams, 23 NY2d 592, 596 [1969]). This is so even if the service of a summons and complaint is maliciously motivated (see Krause & Krause v. Gelman, 167 AD2d 299 [1st Dept 1990]). Hence, the plaintiff's claim for abuse of process, arising from the prior HIDEC action, must fail as no process has issued.. The third party complaint was commenced before an answer was submitted in the HIDEC action. Thus, there was no process to be abused. The cause of action for abuse of process is dismissed.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS


To recover damages for the cause of action of intentional infliction of emotional distress, the conduct alleged must be so outrageous in character and extreme in degree as to surpass the limits of decency so "as to be regarded as atrocious and intolerable in a civilized society" (Freihofer v. Hearst Corp., 65 NY2d 135, 143 [1985]).

Similar to abuse of process, the mere commencement of litigation, even if alleged for the purpose of harassment and intimidation, is insufficient to support a claim for intentional infliction of emotional distress (Fischer v. Maloney, 43 NY2d 553, [1998]). The conduct of merely commencing an actions falls short of the requisite extreme and outrageous conduct to support a claim for intentional infliction of emotional distress ( Mago, LLC v. Singh, 47 AD3d 772, 773 [2nd Dept 2008]; see also, Artzt v. Greenberg, 161 AD2d 389 [1st Dept 1990]).

In the instant case, the allegation that the Brickmans have filed an "unfair and "unwarranted" complaint is similarly, unavailing. Shayovitz is, at best, alleging that the commencement of the HIDEC lawsuit was frivolous. The conduct alleged does not support behavior so extreme and so outrageous as to be beyond the bounds of decency. The element of outrageous conduct has been characterized as rigorous and difficult to satisfy, designed to filter out trivial complaints and assure that the claim of severe emotional distress is genuine (Howell v. New York Post Co., Inc., 81 NY2d 115, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993]).

Therefore, Sahyovitz' complaint does not support a claim of either abuse of process or intentional infliction of emotional distress against the Brickmans. The Brickmans' motion to dismiss Shayovitzs third party complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action is granted.

SANCTIONS

CPLR §8303-a states:

(a) If in an action to recover damages for personal injury, injury to property or wrongful death, or an action brought by the individual who committed a crime against the victim of the crime, and such action or claim is commenced or continued by a plaintiff or a counterclaim, defense or cross claim is commenced or continued by a defendant and is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs and reasonable attorney's fees not exceeding ten thousand dollars. [*4] (b) The costs and fees awarded under subdivision (a) of this section shall be assessed either against the party bringing the action, claim, cross claim, defense or counterclaim or against the attorney for such party, or against both, as may be determined by the court, based upon the circumstances of the case. Such costs and fees shall be in addition to any other judgment awarded to the successful party. (c) In order to find the action, claim, counterclaim, defense or cross claim to be frivolous under subdivision (a) of this section, the court must find one or more of the following: (i) the action, claim, counterclaim, defense or cross claim was commenced, used or continued in bad faith, solely to delay or prolong the resolution of the litigation or to harass or maliciously injure another; (ii) the action, claim, counterclaim, defense or cross claim was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law. If the action, claim, counterclaim, defense or cross claim was promptly discontinued when the party or the attorney learned or should have learned that the action, claim, counterclaim, defense or cross claim lacked such a reasonable basis, the court may find that the party or the attorney did not act in bad faith.

22 NYCRR 130-1.1 states:

(A) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expense reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart.

For purposes of this Part, conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

Although the Brickmans prevailed on their motion to dismiss Shayovitz third-party [*5]complaint against them, this fact standing alone does not support imposition of sanctions. To obtain sanctions the Brickmans must demonstrate that the action against them was frivolous. The Brickmans do not claim that Shayovitz made materially false allegations of fact in his complaint. Nor do they claim that Shayovitz commenced the third party action to delay or prolong the resolution of the litigation, or to harass or maliciously injure them. Rather, their contention is limited to the claim that the action is patently without merit. In order to impose sanctions on this basis, the court must find, not only, that the third party complaint was without merit in law but also that it could not be supported by a reasonable argument for an extension, modification, or reversal of existing law (Premier Capital v. Damon Realty Corp., 299 AD2d 158 [1st Dept.2002]; see also Knoff v. Johnson 5 Misc 3d 1003(A) [NY Sup 2004] ).

Brickmans' motion for sanctions, however, contains mere conclusory allegations of bad faith by Shayovitz. There was no evidence that Shayovitz commenced the action for malicious reasons. There was also no evidence submitted to support the contention that Shayovitz knew or should have known that their complaint lacked any reasonable basis. The Brickmans referenced a copy of a letter from them to the third-party plaintiff, dated May 1, 2008, which allegedly informed Shayovitz that his law suit was frivolous. This letter, however, was annexed as an exhibit to their reply, not their motion. The letter has no affidavit of service and contains no allegations of fact to support the contention that the third-party complaint is frivolous.

The Court cannot and does not find that the third-party complaint could not be supported by a good faith argument for an extension, modification or reversal of existing law. The decision as to whether to award sanctions, therefore, remains within the sound discretion of the court (Wagner v. Goldberg, 293 AD2d 527 [2nd Dept.2002], and for the foregoing reasons, the court will not impose sanctions against the third-party plaintiff.

Defendants Brickman's motion for sanctions is denied.

The foregoing constitutes the decision and order of the court.

___________________________

J.S.C.