| Light v Light |
| 2009 NY Slip Op 05847 [64 AD3d 633] |
| July 14, 2009 |
| Appellate Division, Second Department |
| Elizabeth Light, Respondent, v Lawrence Light et al.,Defendants, and Christine Muro, Appellant. |
—[*1] Thomas F. Farley, P.C., White Plains, N.Y., for respondent.
In an action, inter alia, to recover damages for false arrest, the defendant Christine Muroappeals from so much of an order of the Supreme Court, Putnam County (O'Rourke, J.), enteredMarch 18, 2008, as granted that branch of the plaintiff's motion which was to preclude certaintestimony and evidence and denied her cross motion for summary judgment dismissing thecomplaint insofar as asserted against her and to disqualify the plaintiff's attorney.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof granting that branch of the plaintiff's motion which was to preclude certaintestimony and evidence and substituting therefor a provision denying that branch of the motion;as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
A motion for summary judgment may be made after issue has been joined based on CPLR3211 (a) grounds which have been asserted in the answer (see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595 [2008]; Mann v Malasky, 41 AD3d 1136[2007]). Accordingly, the appellant could move for summary judgment dismissing the complaintinsofar as asserted against her after she served her answer, based upon the affirmative defense offailure to state a cause of action (see CPLR 3211 [a] [7]; [e]). Contrary to the plaintiff'scontention, the doctrine of the law of the case does not apply, as the Supreme Court did notdetermine, on the merits, whether the complaint stated valid causes of action on the previousmotion pursuant to CPLR 3211 (a) (1) (see Kopsidas v Krokos, 18 AD3d 822 [2005]; Gay v Farella, 5 AD3d 540[2004]).
The complaint states valid causes of action to recover damages for false arrest, falseimprisonment, and malicious prosecution (see D'Elia v 58-35 Utopia Parkway Corp., 43 AD3d 976, 978[2007]; Meltzer v Meltzer, 41AD3d 558 [2007]; cf. Levy vGrandone, 14 AD3d 660, 661 [2005]). Similarly, as the complaint alleges that thedefendants filed a false report accusing the plaintiff of a crime, it states a valid cause of action torecover damages for libel per se and slander per se (see Fusco v Fusco, 36 AD3d 589 [2007]). Further, the complaintsufficiently sets forth the elements of abuse of process, intentional infliction of emotionaldistress, and prima facie tort (see Howell v New York Post Co., 81 NY2d 115, 121-122[1993]; Curiano v Suozzi, 63 NY2d 113, 116 [1984]; Burns Jackson Miller Summit& Spitzer v Lindner, 59 NY2d 314, 333 [1983]; Minasian v Lubow, 49 AD3d 1033 [2008]; Marchionni vDrexler, [*2]22 AD3d 814 [2005]; Kevin Spence & Sons v Boar's HeadProvisions Co., 5 AD3d 352, 354 [2004]).
The Supreme Court improvidently exercised its discretion in granting that branch of theplaintiff's motion which was to preclude certain testimony and evidence (see Kerman v Martin Friedman, C.P.A.,P.C., 21 AD3d 997 [2005]; Assael v Metropolitan Tr. Auth., 4 AD3d 443 [2004]), as theplaintiff failed to demonstrate that she was entitled to the drastic remedy of preclusion (see Pepsico, Inc. v Winterthur Intl. Am.Ins. Co., 24 AD3d 742 [2005]).
The Supreme Court providently exercised its discretion in denying that branch of theappellant's cross motion which was to disqualify the plaintiff's attorney, as the appellant failed toestablish that the attorney's testimony was necessary (see Hudson Val. Mar., Inc. v Town of Cortlandt, 54 AD3d 999,1000 [2008]; Bentvena v Edelman,47 AD3d 651 [2008]). Spolzino, J.P., Dillon, Miller and Dickerson, JJ., concur.