Opinion
Index 612744/2017
10-02-2020
DENISE MAHONEY, Plaintiff, v. TERRY MAYOWSKI, MELISSA TEEHAN and WILLIAM WEIGELT, Defendant WILLIAM WEIGELT, Third-Party Plaintiff, v. TRACY MALONE, Third-Patty Defendant.
YOUNG & YOUNG, LLP Attorney for Plaintiff JACOB R. FLEITMAN, P.C. Attorney for Defendanss Mayowski and Teehan PETER SVERD, ESQ. Attorney for Defendant/Third-Party Plaintiff YOUNG & YOUNG, LLP Attorney for Third-Patty Defendant Tracy Malone
Unpublished opinion
MOTION DATE 2/27/20 (001 & 002)
MOTION DATE 3/19/20 (003 & 004)
ADJ. DATE 7/23/20
Mot. Seq.#001-MG, #002-MG #003, MG #004, MG; CASEDISP
YOUNG & YOUNG, LLP Attorney for Plaintiff
JACOB R. FLEITMAN, P.C. Attorney for Defendanss Mayowski and Teehan
PETER SVERD, ESQ. Attorney for Defendant/Third-Party Plaintiff
YOUNG & YOUNG, LLP Attorney for Third-Patty Defendant Tracy Malone
PRESENT: HON. JOSEPH A. SANTORELLI JUSTICE OF THE SUPREME COURT
HON. JOSEPH A. SANTORELLI J.S.C.
Upon the following papers read on this e-filed motion for dismissal/summary judgment: Notice of Motion/ Order to Show Cause a?d supporting papers by defendant/third-party plaintiff William Weigelt dated February 5, 2020. by defendants Terry Mayowski and Melissa Teehan. dated February 6, 2020, by plaintiff Denise Mahoney. dated February 20, 2020, and by third-party defendant Tracy Malone. dated February 20, 2020; Notice of Cross Motion and supporting papers, Answering Affidavits and supporting papers by plaintiff Denise Mahoney. dated March 18, 2020; Replying Affidavit supporting papers by defendant/third-party plaintiff William Weigelt dated July 22, 2020. by defendants Terry Mayowski and Melissa Teehan. dated July 22. 2020.; Other Memoranda of Law; it is
ORDERED that the motion (#001) by defendant/third-party plaintiff William Weigelt, the motion (#002) by defendants Terry Mayowski and Melissa Teehan, the motion (#003) by plaintiff Denise Mahoney, and the motion (#004) by third-party defendant Tracy Malone are consolidated for the purposes of this determination; and it is further;
ORDERED that the motion by defendant/third-party plaintiff William Weigelt for dismissal of the complaint against him is granted; and it is
ORDERED that the motion by defendants Terry Mayowski and Melissa Teehan for dismissal of the complaint against them is granted; and it is
ORDERED that the motion by plaintiff Denise Mahoney for dismissal of the counterclaims against her is granted; and it is
ORDERED that the motion by third-party defendant Tracy Malone for dismissal of the third-party complaint against her is granted.
This action arose out of a verbal altercation that occurred between plaintiff Denise Mahoney and her neighbors on August 28, 206.. The altercation allegedly began after defendant Terry Mayowski looked through the window of his home and spotted Mahoney standing in her front yard across the street waiving her finger and shouting obscenities at him. After observing Mahoney, Mayowski walked into his front yard to confront her. Defendant Melissa Teehan, Mayowski's girlfriend, joined Mayowski shortly after she overheard the shouting and began arguing with Mahoney. As the ensuing verbal confrontation ensued, Mahoney allegedly threatened to assault the couple. Teehan, allegedly feeling threatened, returned into her home and called the police. Teehan and Mayowski made a statement to the police after they arrived and Mahoney allegedly was arrested and charged with harassment. Teehan also obtained an ex-parte order of protection against Mahoney, causing the police to take possession of her firearm. The Suffolk County District Attorney's Office initiated a criminal action against Mahoney, and a hearing was held on May 5, 2017. In addition to Mayowski and Teehan, defendant/third-party plaintiff William Weigelt, another of Mahoney's neighbors, appeared and testified against her. During an adjournment of the trial, Weigelt, having learned that a video of the altercation existed, returned to the Suffolk County District Attorney's Office where he revealed that some of his previous testimony was untruthful or inaccurate. As a result, the Suffolk County District Attorney's Office moved to dismiss the criminal complaint against Mahoney and the order of protection against her was vacated. Following dismissal of the complain,, Mahoney commenced the instant action asserting causes of action against defendants based on false arrest, malicious prosecution, defamation, the infliction of emotional distress, and abuse of legal process. The defendants joined issue denying Mahoney's claims and asserting affirmative defenses. However, Weigelt, whose answer recites protracted acrimonious relations between himself, Mahoney, and her wife, Tracy Malone, asserted counterclaims against Mahoney for infliction of emotional distress, abuse of process, and defamation. Weigelt also impleaded Tracy Malone, asserting defamation and the intentional and negligent infliction of emotion distress against her. In response, Tracy Malone joined the third-party action denying all of Weigelt's claims. The note of issue was filed on October 25, 209..
Weigelt now moves, pursuant to CPLR 3211 (a) (7) and 3212, for dismissal of the complaint against him. Weigelt asserts that the false arrest and malicious prosecution claims against him fail as a matter of law, as he played no role in instigating the action against plaintiff, he was merely one of three testifying witnesses, the action was not terminated in Mahoney's favor, and probable cause existed for her prosecution. Weigelt argues that the defamation claims against him must likewise be dismissed, because with the exception of his testimony at trial, Mahoney failed to sufficiently allege time, manner, and persons to whom Weigelt made defamatory statements against her. Weigelt also requests dismissal of the claims against him for intentional and negligent infliction of emotional distress on the basis he did not engage in either extreme or outrageous conduct toward Mahoney, and that his conduct at trial was not the proximate cause of any physical or emotional injury to her. Teehan and Mayowski seek dismissal of Mahoney's claims on similar bases, arguing, inter alia, that they merely furnished information to the responding police officers who utilized their own judgment in determining that probable cause existed for the arrest of Mahoney, that the alleged defamatory statements were truthful and made during trial, and that they did not engage in any conduct so outrageous that it was either injurious to Mahoney's physical or emotional well being.
Mahoney and Malone, by way of separate motions, move for dismissal of the counterclaims and third-party claims against them. Mahoney contends that she did not engage in any extreme outrageous conduct that her conduct did not cause Weigelt economic or emotional injury, and that the complaints and notices she made concerning Weigelt's behavior as a neighbor, or the conditions at his residence, were made for legitimate purposes. Mahoney asserts that the statements and letters she published concerning Weigelt's behavior as a neighbor are protected by truth, qualified privilege, and did not involve allegation of crimes so serious that they rise to the level of defamation per se. Malone makes similar arguments in support of her motion to dismiss the third-party complaint against her.
On a motion pursuant to CPLR 3211 (a) (7), the court must afford the pleading a liberal construction accept all the facts pleaded in the complaint as true, accord the plaintiff the benefit of every possible inference and determine only whether the facts, as alleged, fit within any cognizable legal theory (see Leon v Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972 [1994]; Hynes v Griebel, 300 A.D.2d 628, 754 N.Y.S.2d 293 [2d Dept 20021; Glassman v Zoret, 291 A.D.2d 430, 737 N.Y.S.2d 537 [2d Dept 2001]). The criterion is whether the plaintiff has a cause of action, not whether he or she has stated one (see Vorel v NBA Props., 285 A.D.2d 641, 728 N.Y.S.2d 397 [2d Dept 2001]). In contrast, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law tendering sufficient evidence to eliminate any material issues of fact from the case (see Alvarez v Prospect Hotp 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 487 N.Y.S.2d 316 (1985]). The failure to make such showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp,, 68 N.Y.2d 320 508 N.Y.S.2d 923; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 925 [1980]).
T~ establish a claim for abuse of process, a plaintiff must prove three essential elements, to wit, regularly-Issued process either civil or criminal, an intent to do harm without excuse or justification, and the use of process in a perverted manner to obtain a collateral objective (see Curiano v Suozzi,, 63 N.Y.2d 113, 480 N.Y.S.2d 466 [1984]; Marks v Marks, 113 A.D.2d 744, 493 N.Y.S.2d 206 [2d Dept 1985]). However, where the complaint fails to allege some irregular activity in the use of judicial process for a purpose not sanctioned by law, or that the process unlawfully interfered with the plaintiffs property, an action to recover damages based upon the alleged abuse of process must fail (see Curiano v Suozzi, supra; Williams v Williams, 23 N.Y.2d 592, 596, 298 N.Y.S.2d 473 [1969]; Mago LLC v Singh, 47 A.D.3d 772, 851 N.Y.S.2d 593 [2d Dept 2008]; Panish v Steinberg, 32 A.D.3d 383, 819 N.Y.S.2d 549 [2d Dept 2006]; Reisman v Kerry Lutz, PC, 6 A.D.3d 418, 774 N.Y.S.2d 345 [2d Dept 2004]). As for the claims predicated on false arrest, "a civilian complainant,, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest" (Leviev v Bebe Stores Inc., 85 A.D.3d 736, 736, 924 N.Y.S.2d 822 [2d Dept 2011]; see Du Chateau v Metro-North Commuter R.R. Co., 253 A.D.2d 128, 131, 688 N.Y.S.2d 12 [1st Dept 1999]). Relatedly, to make out an actionable malicious prosecution claim, a plaintiff has the heavy burden of establishing (1) the commencement or continuation of a criminal proceeding against the plaintiff, (2) the termination of that proceeding in the plaintiffs favor, (3) the absence of probable cause for the criminal proceeding, and (4) actual malice (see Martinez v City of Schenectady, 97 N.Y.2d 78, 735 N.Y.S.2d 868 [2001]). It is noted that probable cause to believe that a person committed a crime is a complete defense to a claim of malicious prosecution (see Fortunato v City of New York, 63 A.D.3d 880, 882 N.Y.S.2d 195 [2d Dept 2009]) and "information provided by an identified citizen accusing another individual of a specific crime is [generally] legally sufficient to provide the police with probable cause to arrest" (People v Bero, 139 A.D.2d 581, 584, 526 N.Y.S.2d 979 [2d Dept 1988]; see Wasilewicz v Monroe Police Dept., 3 A.D.3d 561, 771 N.Y.S.2d 170 [2d Dept 2004]).
The elements of a cause of action to recover damages for defamation are a false statement, published without privilege or authorization to a third-party, constituting fault as judged by, at a minimum a negligence standard, and it must either cause special damages or constitute defamation per se (see Dillon v City of New York, 261 A.D.2d 34, 704 N.Y.S.2d 1 [1st Dept 1999]). The complaint must set forth the particular words allegedly constituting defamation, and it must also allege the time, place, and manner in which the false statements were made and by whom they were made (see Dillon v City of New York supra at 38). Generally, a plaintiff alleging slander must plead and prove that he or she has sustained special damages (see Liberman v Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857 [1992]). Special damages consist of the loss of something having economic or pecuniary value, which must flow directly from the injury to reputation caused by the defamation (Franklin v Daily Holding,, Inc,, 135 A.D.3d 87, 21 N.Y.S.3d 6 [1st Dept 2015]). A plaintiff need not, however, prove special damages as a result of slander if he or she can establish that the alleged defamatory statement constituted slander per se (see Gatz v Otis Ford 274 A.D.2d 449, 711 N.Y.S.2d 467 [2d Dept 2000]). The four categories of slander per se consist of statements (1) charging plaintiff committed a serious crime; (2) that tend to injure the plaintiff his or her trade, business or profession; (3) that plaintiff has a loathsome disease; or (4) Imputing unchastity to a woman (Liberman v Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857).
Statements which are otherwise defamatory may be subject to a qualified privilege when they are "fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his [or her] interest is concerned" (Toker v Pollak, 44 N.Y.2d 211, 219, 405 N.Y.S.2d 1 [1978]). Qualified 'common interest' privilege extends to a "communication made by one person to another upon a subject in which both have an interest" (Liberman v Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857). When subject to these forms of conditional privilege, statements are protected if they were not made with malice or reckless disregard to truth or falsity (Liberman v Gelstein, 80 N.Y.2d 429, 437-4359090 N.Y.S.2d 857; see Stega v New York Downtown Hosp., 31 N.Y.3d 661, 82 N.Y.S.3d 323 [2018]). In this context, malice "should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will" (Liberman v Gelstein, 80 N.Y.2d 429, 43,, 590 N.Y.S.2d 857). In addition to qualified privilege, statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court, are generally accorded an absolute privilege, as long as the statements may be considered in some way "pertinent"" to the issues in the proceeding (see Martirano v Frost, 25 N.Y.2d 505, 307 N.Y.S.2d 425 [1969]; Front, Inc. v Khalil, 24 NY3d 713, 718, 4 N.Y.S.3d 581 [2015]; Segall v Sanders, 129 A.D.3d 819, 820, 11 N.Y.S.3d 235 [2d Dept 2015]). The privilege applies to statements made in or out of court, on or off the record, and regardless of the motive with which they were made (see Park Knoll Assoc. v Schmidt, 59 N.Y.2d 205, 464 N.Y.S.2d 424 [1983]).
"The tort of intentional infliction of emotional distress predicates liability on the basis of extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society" (Freihofer v Hearst Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d 735[19851) Thus the conduct alleged "must consist of more than mere insults, indignities, and annoyances" (Nestlerode v Federal Ins. Co., 66 A.D.2d 504, 507, 414 N.Y.S.2d 398 [4th Dept 1979]). Rather the intentional infliction of emotional distress will be found where severe mental anguish is inflicted through a deliberate and malicious campaign of harassment (see Nader v General Motors Corp. 25 N.Y.2d 560, 307 N.Y.S.2d 647 [1970]). The use of religious, ethnic or racial aspersions to denigrate a person although deplorable, is not sufficiently egregious conduct to sustain a claim of this type Le Leibowitz v Bank Leumi Trust Co., 152 A.D.2d 169, 548 N.Y.S.2d 513 [2d Dept 1989]). A claim for the negligent infliction of emotional distress generally must be premised upon the breach of a duty owed to [the] plaintiff which either unreasonably endangers the plaintiffs physical safety, or causes the plaintiff to fear for his or her own safety (Sheila C. v Povich, 11 A.D.3d 120, 130, 781 N.Y.S.2d 342 [1st Dept 2004]; see Jason v. Krey, 60 A.D.3d 735, 736, 875 N.Y.S.2d 194 [2d Dept 2009]). As it is predicated on negligent conduct, a claim for the negligent infliction of emotional distress will fail where no allegations of negligence appear in the pleadings (see Daluise v Sottile, 40 A.D.3d 801, 803, 837 N.Y.S.2d 175 [2d Dept 2007], quoting Russo v Iacono, 73 A.D.2d 913, 913, 423 N.Y.S.2d 253 [2d Dept 1980]).
Here Weigelt established, prima facie, his entitlement to dismissal of the malicious prosecution, false arrest and abuse of process claims against him by demonstrating that he did not instigate the criminal action against Maloney, that the action, which was administratively dismissed, did not terminate in her favor, and that the police determined probable cause existed where, as in this case, the charge was based on a civilian complaint alleging the commission of a specific crime (see Hollender v Trump Vil. Coop., Inc., 58 N.Y.2d 420, 461 N.Y.S.2d 765 [1983]; Wasilewicz v Monroe Police Dept, 3 A.D.3d 561, 771 N.Y.S.2d 170; Leviev v Bebe Stores Inc., 85 A.D.3d 736, 924 N.Y.S.2d 822; Fortunato v City of New York, 63 A.D.3d 880, 882 N.Y.S.2d 195; Iorio v City of New York, 19 A.D.3d 452, 798 N.Y.S.2d 437 [2d Dept 2005]). Although the complaint alleges that Weigelt participated in the criminal proceeding against Maloney out of spite, "[a] malicious motive alone .. . does not give rise to a cause of action for abuse of process" (Curiano v Suozzi, , 63 N.Y.2d 113, 117, 480 N.Y.S.2d 466 [1984]; see Liss v Forte, 96 A.D.3d 1592, 947 N.Y.S.2d 270 [4th Dept 2012]). Weigelt further demonstrated that the complaint failed to state actionable claims against him for defamation and the infliction of emotional distress. Notably, Weigelt illustrated that the complaint failed to particularize the alleged defamatory statements or the resulting special damages to Maloney (see Liberman v Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857; Rail v Hellman, 284 A.D.2d 113, 726 N.Y.S.2d 629 [1st Dept 2001]; Christopher Lisa Matthew Policano, Inc. v North Am. Precis Syndicate, Inc., 129 A.D.2d 488, 544 N.Y.S.2d 239 [1st Dept 1987]), and the statements made by Weigelt during the criminal proceeding are absolutely privileged (see Front, Inc. v Khalil, 24 N.Y.3d 713, 788, 4 N.Y.S.3d 581; Park Knoll Assoc, v Schmidt, 59 N.Y.2d 205, 464 N.Y.S.2d 424; Martirano v Frost, 25 N.Y.2d 505, 307 N.Y.S.2d 425; Segall v Sander,, 129 A.D.3d 819, 820111 N.Y.S.3d 235). As to the infliction of emotional distress claims, Weigelt established that his conduct was neither negligent nor so extreme and outrageous as to warrant viable claims for the intentional or negligent infliction of emotional distress against him (see Liberman v Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857; Howell v New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350 [1993]; Park Knoll Assoc, v Schmidt, 59 N.Y.2d 205, 464 N.Y.S.2d 424; Daluise v Sottile, 40 A.D.3d 801, 837 N.Y.S.2d 175; Dillon v City of New York, 261 A.D.2d 34, 704 N.Y.S.2d 1; Leibowitz v Bank Leumi Trust Co., 152 A.D.2d 169, 548 N.Y.S.2d 513).
In opposition, Mahoney failed to raise triable issues warranting denial of Weigelt's motion (see Alvarez v Prospect Hosp,, 68 N.Y.2d 320, 508 N.Y.S.2d 923; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 925). As noted above, Weigelt did not induce Maloney's arrest or instigate the criminal proceeding against her, and the statements he made during the criminal proceeding were privileged and cannot serve as the basis for the abuse of process, defamation, or infliction of emotional distress claims (see Park Knoll Assoc, v Schmidt, 59 N.Y.2d 205, 464 N.Y.S.2d 424; Weinstock v Sanders, 144 A.D.3d 1019, 42 N.Y.S.3d 205 [2d Dept 2016]). Even assuming, arguendo, that the statements were untruthful and not privileged, the complaint fails to specify any alleged special damages suffered by Maloney (see Liberman v Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857). Furthermore, the emotional distress experienced inherent in any police arrest or detention is insufficient to sustain a claim of intentional infliction of emotional distress (see generally Wyllie v District Attorney of County of Kings, 2 A.D.3d 714, 770 N.Y.S.2d 110 [2d Dept 2003]; see also Matthaus v Hadjedj, 148 A.D.3d 425, 49 N.Y.S.3d 393 [1st Dept 2017][allegation that defendant made false statements to the police causing plaintiffs arrest insufficient to sustain an intentional infliction of emotional distress claim]). Therefore, the motion by defendant/third-party plaintiff William Weigelt for dismissal of the complaint against him is granted.
Teehan and Mayowski also established their entitlement to dismissal of the false arrest and malicious prosecution claims against them. Significantly, as noted above, the criminal proceeding was not terminated in Maloneyss favor, and there is no allegation that Teehan and Mayowski went beyond merely furnishing a complaint to the police who were free to exercise their own judgment in determining that probable cause existed to file criminal charges against Maloney (see Hollendrr v Trump Vii. Coop., Inc. 58 N.Y.2d 420, 461 N.Y.S.2d 765; Leviev v Bebe Stores Inc., 85 A.D.3d 736, 924 N.Y.S.2d 822; Fortunaoe v City of New York, 63 A.D.3d 880, 882 N.Y.S.2d 195; Iorio v City of New York, 19 A.D.3d 452 798 N.Y.S.2d 437; Wasilewicz v Monroe Police Dep't, 3 A.D.3d 561, 771 N.Y.S.2d 170). Teehan and Mayowski likewise demonstrated entitlement to dismissal of the abuse of process claim against them, as the complaint fails to allege that Teehan and Mayowski sought to improperly use the criminal proceeding against Maloney after it was commenced, and their alleged malicious motive in making the complaint to the police alone, does not give rise to a cause of action for abuse of process (see Curiano v Suozz, 63 N.Y.2d 113, 480 N.Y.S.2d 466; Liss v Forte, 96 A.D.3d 1592, 947 N.Y.S.2d 270). Moreover, the complaint failed to state actionable claims against Teehan and Mayowski for defamation and the infliction of emotional distress. Notably, statements made by Teehan and Mayowski in connection with the criminal proceeding are privileged, and the emotional distress Malone allegedly experienced due to any arrest detention, or court appearance is insufficient to sustain claims for intentional and negligent infliction of emotional distress (see Fron,, Inc. v Khalil, 24 N.Y.3d 713, 4 N.Y.S.3d 581; Park Knoll Assoc, v Schmidt, 59 N.Y.2d 205, 464 N.Y.S.2d 424; Martirano v Frost, 25 N.Y.2d 505, 307 N.Y.S.2d 425; Segall v Sanders, 129 A.D.3d 819, 11 N.Y.S.3d 235; Wyllie v District Attorney of County of Kings, 2 A.D.3d 714, 770 N.Y.S.2d 110).
Mahoney failed to raise triable issues warranting denial of the motion by Mayowski and Teehan (see Alvarez v Prospect Hosp,, 68 N.Y.2d 320, 508 N.Y.S.2d 923; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 925). "[Information provided by an identified citizen accusing another individual of a specific crime is [generally] legally sufficient to provide the police with probable cause to arrest" (People v Bero, 139 A.D.2d 581, 526 N.Y.S.2d 979), and probable cause to believe that a person committed a crime is a complete defense to a claim of malicious prosecution (see Fortunaoo v City of New York, 63 A.D.3d 880, 882 N.Y.S.2d 195). Moreover, Mahoney failed to adduce any evidence that Teehan and Mayowski sought to improperly use the criminal proceeding against her after it was commenced, and their alleged malicious motive in making the complaint to the police alone, does not give rise to a cause of action for abuse of process (see Curiano v Suozz,, 63 N.Y.2d 113, 480 N.Y.S.2d 466; Liss v Forte, 96 A.D.3d 1592, 947 N.Y.S.2d 270). Further, the statements made by Teehan and Mayowski in connection with the criminal proceeding are privileged, and the emotional distress experienced due to any arrest, detention, or court appearance, is insufficient to sustain claims for intentional and negligent infliction of emotional distress (see Fron,, Inc. v Khalil, 24 N.Y.3d 713, 4 N.Y.S.3d 581; Park Knoll Assoc, v Schmidt, 59 N.Y.2d 205, 464 N.Y.S.2d 424; Martirano v Frost, 25 N.Y.2d 505, 307 N.Y.S.2d 425; Segall v Sanders, 129 A.D.3d 819, 11 N.Y.S.3d 235). Therefore, the motion by Teehan and Mayowski for dismissal of the complaint against them is granted.
Weigelt's counterclaims against Maloney for the infliction of emotional distress, abuse of process, and defamation are equally unavailing. The allegation that Mahoney caused her tenant to file a police complaint against Weigelt is not only unsubstantiated, but the counterclaims, which focus on Mahoney's alleged malicious motives, fail to allege that the tenant's complaint to the police was for a purpose not sanctioned by law, or that it was improperly used after process was issued (Curiano v Suozz,, 63 N.Y.2d 113, 480 N.Y.S.2d 466; Place v Ciccotelli, 121 A.D.3d 1378, 995 N.Y.S.2d 348 [3d Dept
2014]: Liss v Forte, 96 A.D.3d 1592, 947 N.Y.S.2d 270 [4th Dept 2012]; Minasian v. Lubow, 49 A.D.3d 1033 856 N.Y.S.2d 255 [3d Dept 2008]). The same reasoning applies to the allegations concerning civil complaints Mahoney filed with the Town of Babylon about Weigelt's purported erection of an unpermitted fence, the illegal rental of a section of his home, and the direction of flood lights towards her home Notwithstanding Mahoney's alleged malicious motivation in making the complaints, there is no proof that she utilized the process in a manner inconsistent with the purpose for which it was designed or that the complaints were made without social excuse or justification (see Curiano v Suozz,, 63 N.Y.2d 113, 480 N.Y.S.2d 466; Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn,, Local 1889, AFL-CIO, 38 N.Y.2d 397, 380 N.Y.S.2d 635 [1975]; Benjamin v Assad, 186 A.D.3d 549, 2020 NY Slip Op 04449 [2d Dept 2020]; Liss v Forte, 96 A.D.3d 1592, 947 N.Y.S.2d 270).
As the complaint alleges intentional conduct on Maloneyss behalf, the counterclaims contained in Weigelt's answer fails to allege an actionable claim for the negligent infliction of emotional distress (see Daluise v Sottile, 40 A.D.3d 801, 837 N.Y.S.2d 175; Russo v Iacono, 73 A.D.2d 913, 933, 423 N.Y.S.2d 253) Equally absent from those counterclaims are allegations that Mahoney engaged in conduct so extreme and outrageous as to make out a claim for the intentional infliction of emotional distress. As the conduct underlying the abuse of process claim amounts to mere insults, indignities, and annoyances, it is insufficient for the purposes of making out an intentional infliction of emotional distress claim (see Nestlerode v Federal Ins. Co., 66 A.D.2d 504, 507, 414 N.Y.S.2d 398). Weigelt's allegations regarding the letters and flyers authored by Mahoney and her wife accusing him of harming their cats and requesting that he cease harassing her also are insufficient to demonstrate that Mahoney's conduct was calculated to intentionally cause him distress or were "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency" (Murphy v American Home Prods. Corp, 58 N.Y.2d 298, 303, 461 N.Y.S.2d 232 [1983] [internal citation omitted]; see Howell v New York Post, 81 N.Y.2d 115, 122, 596 N.Y.S.2d 320 [1993]). In any event, those allegations are impermissibly duplicative of Weigelt's defamation claim (see Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991 [1978]; Matthaus v Hadjedj, 148 A.D.3d 425, 425, 49N.Y.S.3d 393 [1st Dept 2017]). Furthermore, even assuming, arguendo, that Mahoney's alleged placement of a shotgun shell on the "curtilage" of Weigelt's home with the name "Sam" written on it constituted extreme and outrageous conduct sufficient to state an intentional infliction of emotional distress claim, the threat was not directed to Weigelt himself. Indeed, Weigelt's allegations concerning this incident are belied by the testimony of Terry Mayowski that the name "Sam" referred to his child, and that the shotgun shell was placed in his, rather than Weigelt's, front yard.
Weigelt's defamation counterclaims are also insufficiently pled and inactionable. As the counterclaims fail to allege the publication of defamatory statements accusing Weigelt of a serious crime, impugning his profession, or asserting that he had some loathsome disease, it failed to state an actionable cause of action for slander per se (see Liberman v Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857). With respect to Weigelt's remaining defamation counterclaims, the letters and flyers published by Mahoney to other surrounding neighbors concerning Weigelt's alleged animal cruelty and harassment are subject to qualified privilege as they can be fairly thought of as the discharge of a public or private duty, and relate to a common interest shared by neighbors (see Stega v New York Downtown Hosp., 31 NY3d 661, 82 N.Y.S.3d 323; Liberman v Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857; Toker v Pollak, 44 N.Y.2d 211, 219, 405 N.Y.S.2d 1). It is noted that the allegations of Mahoney's spite or ill will in publishing these statements are insufficient to preclude qualified privilege, and the burden is on Weigelt to prove that Mahoney published these statements with malice or reckless regard for truth (see Liberman v Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857; Stega v. New York Downtown Hosp,, 31 N.Y.3d 661, 82 N.Y.S.3d 323). Moreover, Weigelt's defamation counterclaim failed to allege special damages with the particularity required by CPLR 3016 (see Rail v Hellman, 284 A.D.2d 113, 726 N.Y.S.2d 629; Christopher Lisa Matthew Policano, Inc. v North Am. Precis Syndicate, Inc., 129 A.D.2d 488, 544 N.Y.S.2d 239). It is noted that round figures included in general demands for judgment lacking any attempt to itemize the alleged loss, such as those pled by Weigelt, do not state special damages with the required specificity (see Drug Research Corp. v Curtis Publ. Co., 7 N.Y.2d 435, 199 N.Y.S.2d 33 [1960]; Franklin v Daily Holdings, Inc,, 135 A.D.3d 87, 21 N.Y.S.3d 6 [1st Dept 2015] [round figure of $3,000,000 when alleging damages was insufficient to state special damages]).
Weigelt failed to raise a triable issue in opposition warranting denial of the motion (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 925). As noted by Weigelt, an accusation of harassment is insufficient to support claim of slander per se (see Liberman v Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857). Although the pleadings illustrate the mutual acrimonious relationship between Weigelt and Mahoney, Weigelt failed to demonstrate that Mahoney and her wife engaged in a prolonged campaign of harassment and intimidation against him. Further, many of Weigelt's intentional infliction of emotional distress claims were duplicative of his defamation claims and, are thus, separately inactionable (see Fischer v Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991; Matthaus v Hadjedj, 148 A.D.3d 425, 425, 49 N.Y.S.3d 393). The court finds the remainder of Weigelt's arguments to be without merit and insufficient to defeat Mahoney's prima facie showing. Accordingly, the motion by Denise Mahoney for dismissal of the counterclaims against her is granted.
In light of the foregoing, the court also grants the motion by Malone seeking dismissal of the third-party complaint against her. The court notes that the defamation, negligents, and intentional infliction of emotional distress causes of action contained in the third-party complaint against Malone are identical to those same causes of action asserted in the counterclaims asserted against Mahoney, and the court has already addressed the relative arguments made by the parties regarding the merit of those claims.