| Greco v Christoffersen |
| 2010 NY Slip Op 00924 [70 AD3d 769] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Anthony Greco, Appellant, v Alan Christoffersen et al.,Respondents. |
—[*1] Robert Prignoli, Staten Island, N.Y., respondent pro se and for respondent Sienna Abstract,LLC.
In an action to recover damages for fraud and aiding and abetting fraud, the plaintiff appeals,as limited by his brief, from so much of an order of the Supreme Court, Richmond County(Fusco, J.), dated December 10, 2008, as granted the motion of the defendant Robert Prignoli forleave to amend his answer to assert counterclaims to recover damages for abuse of process andmalicious prosecution and to impose a sanction upon the plaintiff pursuant to 22 NYCRR130-1.1, and denied those branches of his cross motion pursuant to CPLR 3211 (b) which wereto dismiss the first, sixth, ninth, and eleventh affirmative defenses of all three defendants, theeighth and twelfth affirmative defenses of the defendant Alan Christoffersen, and the fifth andtwelfth affirmative defenses of the defendant Robert Prignoli.
Ordered that the order is modified, on the law, on the facts, and in the exercise of discretion,(1) by deleting the provision thereof granting the motion of the defendant Robert Prignoli forleave to amend his answer to assert counterclaims to recover damages for abuse of process andmalicious prosecution and to impose a sanction upon the plaintiff pursuant to 22 NYCRR130-1.1, and substituting therefor a provision denying the motion, and (2) by deleting theprovision thereof denying those branches of the plaintiff's cross motion which were pursuant toCPLR 3211 (b) to dismiss the eleventh affirmative defenses of all three defendants, the eighthand twelfth affirmative defenses of the defendant Alan Christoffersen, and the twelfthaffirmative defense of the defendant Robert Prignoli, and substituting therefor a provisiongranting those branches of the cross motion; as so modified, the order is affirmed insofar asappealed from, with costs to the plaintiff.
The Supreme Court improvidently exercised its discretion in granting the motion of thedefendant Robert Prignoli for leave to amend his answer to assert counterclaims to recoverdamages for abuse of process and malicious prosecution and to impose a sanction upon theplaintiff pursuant to 22 NYCRR 130-1.1. "Leave to amend pleadings should be freely givenprovided that the amendment is not palpably insufficient, does not prejudice or surprise theopposing party, and is not patently devoid of merit" (Gitlin v Chirinkin, 60 AD3d 901, 901-902 [2009]; seeCPLR 3025 [b]; Sheila Props., Inc. v AReal Good Plumber, Inc., 59 AD3d 424, 426 [2009]; Boakye-Yiadom v Roosevelt Union FreeSchool Dist., 57 AD3d 929, 931 [2008]). "A determination whether to grant such leaveis [*2]within the Supreme Court's broad discretion, and theexercise of that discretion will not be lightly disturbed" (Gitlin v Chirinkin, 60 AD3d at902; see Ingrami v Rovner, 45AD3d 806, 808 [2007]).
"Abuse of process has three essential elements: (1) regularly issued process, either civil orcriminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in aperverted manner to obtain a collateral objective" (Curiano v Suozzi, 63 NY2d 113, 116[1984]). Here, there is no evidence that the plaintiff commenced the instant action with an intentto do harm without excuse or justification. Moreover, the mere commencement of a lawsuitcannot serve as the basis for a cause of action alleging abuse of process (id. at 117). Thecommencement of the instant action does not give rise to a counterclaim alleging maliciousprosecution, since there was no interference with Prignoli's person or property because of resortto a provisional remedy, such as arrest, attachment, injunction, receivership, or notice ofpendency (see Clark v MacKay, 97 AD2d 394 [1983]; Ellman v McCarty, 70AD2d 150 [1979]; cf. Chu v Greenpoint Bank, 257 AD2d 589 [1999]).
Furthermore, with respect to Prignoli's third proposed counterclaim, New York does notrecognize a separate cause of action to impose sanctions (see Ocean Side Institutional Indus.,Inc. v Superior Laundry, 15 Misc 3d 1123[A], 2007 NY Slip Op 50822[U] [2007];Aurora Loan Servs., LLC v Cambridge Home Capital, LLC, 12 Misc 3d 1152[A], 2006NY Slip Op 50869[U] [2006]). Thus, that branch of Prignoli's motion which was for leave toamend his answer to assert such a counterclaim should have been denied.
The Supreme Court erred in denying those branches of the plaintiff's cross motion whichwere to dismiss the eleventh affirmative defense asserted by all three defendants as well as theeighth and twelfth affirmative defenses asserted by the defendant Alan Christoffersen and thetwelfth affirmative defense asserted by Prignoli. CPLR 3211 (b) authorizes a plaintiff to move, atany time, to dismiss a defendant's affirmative defense on the ground that it "has no merit"(see Albin v First Nationwide Network Mtge. Co., 248 AD2d 417, 419 [1998]; see generally Butler v Catinella, 58AD3d 145 [2008]). Thus, when moving to dismiss or strike an affirmative defense, theplaintiff bears the burden of demonstrating that the affirmative defense is "without merit as amatter of law" (Vita v New York WasteServs., LLC, 34 AD3d 559, 559 [2006]). In reviewing a motion to dismiss anaffirmative defense, this Court must liberally construe the pleadings in favor of the partyasserting the defense and give that party the benefit of every reasonable inference (see Fireman's Fund Ins. Co. v Farrell,57 AD3d 721, 723 [2008]).
Here, the Supreme Court should have granted that branch of the plaintiff's cross motionwhich was to dismiss the eleventh affirmative defense asserted by all three defendants since thedoctrine of unclean hands is an equitable defense that is unavailable where, as here, the action isexclusively for damages (see ManshionJoho Ctr. Co., Ltd. v Manshion Joho Ctr., Inc., 24 AD3d 189 [2005]). Likewise, theplaintiff established his entitlement to the dismissal of the eighth affirmative defense asserted byChristoffersen, which asserted that he was not a party to the alleged transaction, by submitting acopy of a deed reflecting the transfer of the property at issue in this matter from Christoffersen tothe plaintiff. Finally, the Supreme Court should have granted those branches of the cross motionwhich were to dismiss the twelfth affirmative defenses asserted by Christoffersen and Prignoli,both of which asserted that the complaint failed to state the circumstances constituting fraud withthe requisite specificity (see CPLR 3016 [b]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Dillon, Belen andRoman, JJ., concur.