| Caplan v Tofel |
| 2009 NY Slip Op 06658 [65 AD3d 1180] |
| September 22, 2009 |
| Appellate Division, Second Department |
| David R. Caplan, Appellant-Respondent, v Lawrence E.Tofel et al., Respondents-Appellants. |
—[*1] Tofel & Partners, LLP, New York, N.Y. (Lawrence E. Tofel of counsel), forrespondents-appellants.
In an action to recover damages for abuse of process and tortious interference withprospective economic advantage, the plaintiff appeals from so much of an order of the SupremeCourt, Dutchess County (Pagones, J.), dated February 22, 2008, as granted those branches of thedefendants' motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (7) and toimpose a sanction upon him pursuant to 22 NYCRR 130-1.1, and the defendants cross-appealfrom so much of the same order as denied that branch of their motion which was to impose asanction upon the plaintiff's counsel pursuant to 22 NYCRR 130-1.1.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, with costs tothe defendants; and it is further,
Ordered that on the Court's own motion, counsel for the parties to this appeal are directed toshow cause why an order should or should not be made and entered imposing such sanctions,and/or costs, if any, including appellate counsel fees, against the plaintiff and/or the plaintiff'scounsel, pursuant to 22 NYCRR 130-1.1 (c) as this Court may deem appropriate, by each filingan original and four copies of an affirmation or affidavit on that issue with the Clerk of thisCourt and serving one copy on the other party on or before October 23, 2009; and it is further,
Ordered that the Clerk of this Court, or his designee, is directed to serve counsel for therespective parties with a copy of this decision and order by regular mail.
The Supreme Court properly granted that branch of the defendants' motion which was todismiss the complaint pursuant to CPLR 3211 (a) (7). The complaint failed to state a cause ofaction because it did not set forth facts to support the plaintiff's conclusory allegation that thedefendants' lawful issuance of a restraining notice constituted an abuse of process or tortiousinterference with prospective economic advantage (see Curiano v Suozzi, 63 NY2d 113,116 [1984]; Reisman v Kerry Lutz,P.C., 6 AD3d 418, 419 [2004]; Aluminum Mill Supply Corp. v Larkin, 129AD2d 542 [1987]; see also Carvel Corp.v Noonan, 3 NY3d 182, 190-191 [2004]). The defendants' "legitimate use of acollection tool did not constitute a tort" (Caribbean Constr. Servs. & Assoc. v Zurich Ins.Co., 267 AD2d 81, 83 [1999]; see CPLR 5222). Moreover, the plaintiff failed toallege that he sustained any [*2]damages as a result of hisinability to secure a new bond from the Travelers Insurance Company (hereinafter the insurancecompany) while his appeal from the defendants' judgment against him was pending (seeBoard of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom TeachersAssn., Local 1889, AFT AFL-CIO, 38 NY2d 397, 405 [1975]), and his allegation that hisbusiness relationship with the insurance company was severely and permanently damaged isflatly contradicted by the record, and thus need not be accepted as true (see Arnav Indus.,Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303[2001]; Salvatore v Kumar, 45AD3d 560, 563 [2007]).
The Supreme Court also providently exercised its discretion in granting that branch of thedefendants' motion which was to impose a sanction upon the plaintiff pursuant to 22 NYCRR130-1.1 for frivolous conduct. Contrary to the plaintiff's contention, the record supports theSupreme Court's finding that he engaged in frivolous conduct by instituting this action for theprimary purpose of delaying enforcement of the defendants' judgment (see Matter ofMinister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v 198 Broadway,76 NY2d 411 [1990]). However, the Supreme Court providently exercised its discretion indenying that branch of the defendant's motion which was to impose a sanction upon theplaintiff's counsel, based upon its finding that counsel was not fully aware of the history of priorlitigation between the parties.
The continuation of the same patently meritless arguments on appeal would appear toconstitute frivolous conduct, and therefore we direct counsel for the parties to show cause whyadditional sanctions should or should not be imposed (see Good Old Days Tavern v Zwirn,271 AD2d 270 [2000]; 22 NYCRR 130-1.1 [c]). Mastro, J.P., Florio, Eng and Leventhal, JJ.,concur.