| Minasian v Lubow |
| 2008 NY Slip Op 02515 [49 AD3d 1033] |
| March 20, 2008 |
| Appellate Division, Third Department |
| Violet Minasian, Appellant, v Gregory D. Lubow et al.,Respondents. |
—[*1] Greg D. Lubow, Tannersville, respondent pro se.
Kane, J. Appeal from a judgment of the Supreme Court (Pulver, Jr., J.), entered February 2,2006 in Greene County, upon a verdict rendered in favor of defendants.
Plaintiff owns property adjacent to property owned by defendants Julius Warm and MarianWarm. The Warms commenced an action against plaintiff alleging that they had gained title to aportion of plaintiff's deeded property through adverse possession. Defendant Greg D.Lubow,[FN1]an attorney and the Warms' son-in-law, initially represented them in that action. Approximatelyone year after that action was commenced, plaintiff had a contractor cut down a tree and aportion of another tree on the disputed property. As a result, Lubow filed a criminal complaintcharging plaintiff with criminal mischief in the fourth degree. When the District Attorney's officerefused to prosecute, the criminal complaint was dismissed in the interest of justice.
Plaintiff then commenced this action alleging malicious prosecution, abuse of process,defamation and intentional infliction of emotional distress. This action was consolidated with theadverse possession action. At the end of the proof at trial, defendants moved to dismiss all [*2]claims against them. Supreme Court (Connor, J.) denied the motionas to the malicious prosecution claim against Lubow and granted it as to the remainder of theclaims. The jury found for plaintiff on the adverse possession action and for Lubow on themalicious prosecution claim. The court (Pulver, Jr., J.) subsequently entered a judgment on theverdict. Plaintiff appeals from the portion of the judgment in favor of defendants.[FN2]
The verdict in favor of Lubow was not against the weight of the evidence. A jury verdict fora defendant should only be set aside as against the weight of the evidence if the evidence sopreponderated in favor of the plaintiff "that the jury could not have reached its conclusion on anyfair interpretation of the evidence" (Simpson v Simpson, 222 AD2d 984, 986 [1995]; see Krieg v Peters, 46 AD3d 1190,1191 [2007]). To prevail on her malicious prosecution claim, plaintiff had to show that a civil orcriminal proceeding was commenced, it terminated in her favor, there was no probable cause forthe proceeding, the proceeding was brought out of malice and plaintiff suffered a special injury(see Cantalino v Danner, 96 NY2d 391, 394 [2001]; Williams v Barber, 3 AD3d 695, 696-697 [2004]).
A person commits criminal mischief in the fourth degree when, "having no right to do so norany reasonable ground to believe that he [or she] has such right, he [or she] . . .[i]ntentionally damages property of another person" (Penal Law § 145.00 [1]). Lubowtestified that he filed a criminal complaint against plaintiff charging that crime. Plaintiff's arrestqualified as a special injury (cf. Engel v CBS, Inc., 93 NY2d 195, 205 [1999]). Thedismissal in the interest of justice, based upon the prosecutor's refusal to prosecute what hedeemed a civil matter, was not inconsistent with plaintiff's innocence and thus constituted atermination in her favor (see Cantalino v Danner, 96 NY2d at 395). By deed, the treesthat plaintiff had cut were located on her property. Although an adverse possession claim waspending, and it may have been more prudent for her to refrain from cutting on the disputedproperty, no injunction or restraining order prohibited her actions. Under the circumstances,plaintiff had a reasonable ground to believe that she had a right to cut the trees, and it wasquestionable whether she was cutting her own property as opposed to the "property of anotherperson" (Penal Law § 145.00 [1]). Hence, probable cause was lacking (see Pantazis vBleau Towing Serv., 145 AD2d 816, 818 [1988]). "[A] jury may, but is not required to, inferthe existence of actual malice from the fact that there was no probable cause to initiate theproceeding" (Martin v City of Albany, 42 NY2d 13, 17 [1977]). Although the otherelements were established, the jury could have concluded, on a fair interpretation of the evidenceand despite the lack of probable cause, that no actual malice existed. Thus, the verdict in Lubow'sfavor was not against the weight of the evidence.
The jury's finding in Lubow's favor on the malicious prosecution cause of action rendersSupreme Court's dismissal of that cause of action against the Warms academic, because the causeof action for malicious prosecution against the Warms was dependent upon their alleged support,encouragement and importuning of Lubow's actions. If he is not liable, as the jury found, then theWarms cannot be liable either.[*3]
Supreme Court (Connor, J.) did not err in dismissing theabuse of process cause of action against all defendants. A court may grant a motion to dismiss aclaim at the close of proof if no issues of fact remain and there is no rational basis on which ajury could find for the nonmoving party, even when giving that party every favorable inferencewhich can reasonably be drawn from the evidence (see Rhabb v New York City Hous.Auth., 41 NY2d 200, 202 [1976]; Sherry v North Colonie Cent. School Dist., 39 AD3d 986, 989-990[2007]; Winslow v Freeman, 257 AD2d 698, 699 [1999]). The elements of abuse ofprocess are "regularly issued process, either civil or criminal, an intent to do harm without excuseor justification, and use of the process in a perverted manner to obtain a collateral objective"(Plataniotis v TWE-Advance/Newhouse Partnership, 270 AD2d 627, 630 [2000]; seeCuriano v Suozzi, 63 NY2d 113, 116 [1984]). In general, a claim of abuse of process willonly lie for improperly using process after it is issued (see Curiano v Suozzi, 63 NY2d at117; but see Parkin v Cornell Univ., 78 NY2d 523, 530 [1991] [leaving open questionwhether abuse of process claims can be based on issuance of process itself]). Plaintiff presentedproof that Lubow issued process when he filed the criminal complaint, the Warms may haveencouraged or urged him to do so and defendants may have unjustifiably intended to harm herthrough those actions. There was no proof, however, that any defendant utilized the process in amanner inconsistent with the purpose for which it was designed (compare Board of Educ. ofFarmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889,AFT AFL-CIO, 38 NY2d 397, 404 [1975]). Accordingly, the court properly dismissed theabuse of process claim because there was no rational basis upon which the jury could have foundfor plaintiff on that claim.
Cardona, P.J., Peters, Spain and Lahtinen, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote 1: Although named in thecomplaint as Gregory D. Lubow, Lubow avers that his proper name is Greg D. Lubow.
Footnote 2: As plaintiff's brief does notaddress dismissal of her causes of action for defamation and intentional infliction of emotionaldistress, we deem any arguments on those claims abandoned (see Matter of Trudeau v Cantwell, 31 AD3d 844, 845 n 1 [2006]).