| Caruso v Bumgarner |
| 2014 NY Slip Op 06047 [120 AD3d 1174] |
| September 10, 2014 |
| Appellate Division, Second Department |
[*1]
| Mario Caruso, Respondent, v Jennifer S.Bumgarner, Putnam County Attorney, et al., Defendants, and William G. Sayegh et al.,Appellants. |
Sokoloff Stern, LLP, Carle Place, N.Y., for appellants.
Spain & Spain, P.C. (William D. Spain, Jr., of counsel), for respondent.
In an action, inter alia, for injunctive relief, the defendants William J. McNamara,Gerald A. Schramek, and Debra L. Giordonello appeal, and the defendant William G.Sayegh separately appeals, as limited by their brief, from so much of an order of theSupreme Court, Putnam County (Nicolai, J.), dated August 10, 2012, as denied thatbranch of their cross motion which was pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint insofar as asserted against them.
Ordered that the appeal by the defendant William G. Sayegh is dismissed asacademic; and it is further,
Ordered that the order is reversed insofar as appealed from by the defendantsWilliam J. McNamara, Gerald A. Schramek, and Debra L. Giordonello, on the law, andthat branch of the cross motion of those defendants which was pursuant to CPLR 3211(a) (7) to dismiss the complaint insofar as asserted against them is granted; and it isfurther,
Ordered that one bill of costs is awarded to the defendants William J. McNamara,Gerald A. Schramek, and Debra L. Giordonello.
In February 2011, the plaintiff was convicted, upon his plea of guilty, of two countsof sexual abuse in the first degree for acts he committed in the summer of 2003. One ofthe plaintiff's victims, M.F., resided in the home adjacent to the plaintiff's home inCarmel. The plaintiff was designated a level three sex offender and his sentence includeda 10-year period of probation. Additionally, an order of protection was issued thatincluded a provision requiring the defendant to stay a certain distance away from M.F.The plaintiff claimed that this provision barred him from returning to his home. Theplaintiff subsequently moved to amend the order of protection by deleting the provisionand, after a hearing, the Supreme Court granted the motion.
Thereafter, the plaintiff commenced this action, inter alia, for injunctive reliefagainst, among others, Putnam County Sheriff's Department employees William J.McNamara and Gerald A. Schramek, and Putnam County Probation Departmentemployee Debra L. Giordonello. The plaintiff alleged in his verified complaint thatMcNamara, Schramek, and Giordonello (hereinafter collectively the appellants) violatedCode of Putnam County § 55 by disclosing to the law firm that representedM.F. and M.F.'s family confidential information acquired in the course of official duties,[*2]and by disclosing confidential communications witha prosecutor. According to the plaintiff, these disclosures were made to influence theproceeding with respect to the plaintiff's motion to amend the order of protection, and tobenefit the law firm that represented M.F. and M.F.'s family in the criminal proceedingand anticipated civil proceedings. The plaintiff sought to permanently enjoin theappellants from disclosing to that law firm, or any private person or attorney acting on itsbehalf, any information related to the plaintiff acquired in the course of theiremployment.
The appellants cross-moved pursuant to CPLR 3211 (a) (2), (3) and (7) to dismissthe complaint insofar as asserted against them. The Supreme Court, inter alia, denied thatbranch of the appellants' cross motion which was pursuant to CPLR 3211 (a) (7) todismiss the complaint insofar as asserted against them.
To sufficiently plead a cause of action for a permanent injunction, a plaintiff mustallege that there was a "violation of a right presently occurring, or threatened andimminent," that he or she has no adequate remedy at law, that serious and irreparableharm will result absent the injunction, and that the equities are balanced in his or herfavor (Elow v Svenningsen,58 AD3d 674, 675 [2009]; see also 67A NY Jur 2d Injunctions§ 45). Here, the appellants' allegedly improper conduct occurred during thependency of the plaintiff's motion to amend the order of protection. But that proceedinghas concluded and the plaintiff obtained the relief he sought. The law firm to which theappellants allegedly provided information in violation of Code of Putnam County§ 55 no longer represents M.F. and M.F.'s family. While the plaintiff will beon probation for a number of years, there is no indication that any action is currentlypending against him. Under these circumstances, there can be no irreparable harm in theabsence of a permanent injunction, and, thus, the cause of action for a permanentinjunction against the appellants should have been dismissed (see Ovitz v Bloomberg L.P., 18NY3d 753, 760 [2012]).
The plaintiff's remaining contentions are without merit. Skelos, J.P., Dillon, Malteseand Barros, JJ., concur.