| Retamozzo v Bluestone |
| 2012 NY Slip Op 51847(U) [37 Misc 3d 126(A)] |
| Decided on September 26, 2012 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of
New York, New York County (Arthur F. Engoron, J.), entered on or about July 22, 2010, after
trial, in favor of defendant dismissing the action and awarding defendant damages in the
principal sum of $250 on his counterclaim.
Per Curiam.
Judgment (Arthur F. Engoron, J.), entered on or about July 22, 2010, modified to vacate the award to defendant and dismiss his counterclaim; as modified, judgment affirmed, without costs.
Dismissal of the main small claims action - cast as one seeking damages for injurious falsehood - achieved "substantial justice" consistent with substantive law principles (see CCA 1804, 1807). The statements relied upon by plaintiff were made in the course of and were pertinent to then pending litigation, and thus were absolutely privileged (see Pomerance v McTiernan, 51 AD3d 526, 528 [2008]). To the extent plaintiff, for the first time on appeal, attempts to invoke the provisions of Judiciary Law § 487 as a basis of recovery on the main action, the claim is not properly considered. In any event, the claim is unsupported by evidence of "the requisite chronic and extreme pattern of legal delinquency" (Solow Mgt. Corp. V Seltzer, 18 AD3d 399, 400 [2005], lv denied 5 NY3d 712 [2005]). However, the award to defendant on his counterclaim for abuse of process, malicious prosecution and prima facie tort cannot be sustained on this record, which contains no proof of special damages. We note, too, that no action for abuse of process will lie premised merely upon the commencement of a civil action (see I.G. Second Generation Partners, L.P. v Duane Reade, 17 AD3d 206, 207 [2005]).
Although the trial court did not render a decision in conformity with CPLR 4213(b), a remand is unnecessary since the complete record developed below permits us to independently review and draw our own conclusions from the evidence (see Allen v Black, 275 AD2d 207 [2000]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 26, 2012