Opinion
024342/2007.
August 7, 2009.
PATRICK LANIGAN, ESQ., CORAM, NY, PLTF'S ATTORNEY.
KAREN M. WILUTIS, ESQ., FARMINGVILLE, NY, DEFT'S ATTORNEY.
Upon the following papers numbered 1 to 19 read on this motion to dismiss: Notice of Motion and supporting papers 1 — 12; Affirmation in Opposition 13-15; Reply Affirmation 16 — 19; it is,
ORDERED that the motion (001) by the defendants Robert N. Incagliato and Robert F. Quinlan for an order dismissing the complaint as to them pursuant to CPLR 3211(a)(7) and for costs and/or sanction pursuant to 22 NYCRR 130-1.1 is decided as follows; it is
ORDERED that that part of the motion seeking dismissal as to the defendant Robert N. Incagliato is denied; and it is further
ORDERED that part of the motion seeking dismissal as to the defendant Robert F. Quinlan is granted, the complaint is dismissed only as to the defendant Robert F. Quinlan and the defendant Robert F. Quinlan is hereby severed from the caption and this action shall continue only as against the remaining named defendant, Robert N. Incagliato; and it is further
ORDERED that that part of the motion seeking sanctions and/or costs pursuant to 22 NYCRR 130-1.1 is denied; and it is further
ORDERED that the court directs, sua sponte, that this action be removed to the District Court of Suffolk County pursuant to CPLR 325(d) and 22 NYCRR 202.13(i); and it is further
ORDERED that the Clerk of the Court of Suffolk County is hereby directed to deliver to the Chief Clerk of the District Court of Suffolk County all papers filed in the Suffolk County action (Index No. 24342/07) which shall be filed with the Chief Clerk of the District Court of Suffolk County; and it is further ORDERED that counsel for the defendants is directed to serve a copy of this decision and order upon counsel for the plaintiff pursuant to CPLR 2103 within 45 days of the date of this decision and order and to file the proof of service with the Clerk of the Court.
This is an action for costs incurred as a result of a criminal prosecution against the plaintiff in the Sixth District Court, Suffolk County (hereinafter the District Court) which was terminated in the plaintiff's favor.
The underlying criminal action was for two misdemeanor violations and one non-criminal violation of the Brookhaven Town Code which arose out of the inspection of a house undergoing some construction work.
The Building Inspector, the defendant Robert N. Incagliato (hereinafter Incagliato), issued appearance tickets for the violations to the plaintiff herein, Syed S. Rahman (hereinafter Rahman). Incagliato then prepared and signed accusatory instruments for the three charges describing Rahman as the owner of the subject property "as determined by a search of the records maintained by the Suffolk County Clerk." The accusatory instruments also checked off, as the source of information for the charges, Incagliato's personal knowledge and also upon information and belief based upon a "Copy of a Certified Deed Certified Brookhaven Town Building Department records."
Two months later, Incagliato prepared and signed superceding accusatory instruments as to the same three violations which dropped the ownership allegation and, instead, described Rahman as "the agent for the owner" based upon the same sources of information as for the original accusatory instruments.
A subsequent motion on behalf of Rahman to dismiss the superceding accusatory instruments for "legal insufficiency" was granted with the court stating that the allegation that Rahman "was the agent for the owner of the property" was "wholly insufficient to create an inference that the defendant has any right to possession of the property" and was also insufficient for failure to "contain any evidentiary allegation demonstrating that defendant either knowingly committed, took part or assisted in the commission of the violations, or that defendant maintained the premises in which the violations exist" ( People v Rahman, Dist Ct, 6th Dist, Suffolk County, April 13, 2007, Spelman, J., Docket/Index No. BRTO 1873-06).
Rahman brings the instant action for money damages incurred as a result of the alleged false swearing by Incagliato and the abetting and suborning of perjury by the Town Attorney, Robert F. Quinlan (hereinafter Quinlan). In opposition to this motion, Rahman contends that the actual legal claim he is making is for malicious prosecution and the allegations of false swearing, suborning perjury, etc., are merely factual allegations to support the malicious prosecution claim and not claims for relief in and of themselves.
The defendants now bring this motion to dismiss for failure to state a cause of action ( see CPLR 3211[a][7]) and for the imposition of costs and/or sanctions pursuant to 22 NYCRR 130-1.1.
With regard to the request for a dismissal, in general, in considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court's role is limited to "determining whether a cause of action is stated within the four corners of the complaint, and not whether there is evidentiary support for the complaint [citations omitted]" ( Frank v Daimler Chrysler Corp., 292 AD2d 118, 121, 741 NYS2d 9, 12 [1st Dept 2002], lv denied 99 NY2d 502, 752 NYS2d 589). In addition, the pleading "is to be afforded a liberal construction (CPLR 3026), and the court should accept as true the facts alleged in the complaint, accord the plaintiff the benefit of every possible inference, and only determine whether the facts, as alleged, fit within any cognizable legal theory [citations omitted]" ( Id., at 120-121, 12).
In support of that part of the motion seeking dismissal, the defendants argue (1) that the defendants are entitled to immunity for their conduct in the scope of being municipal employees; (2) that the complaint makes allegations of perjury and subornation of perjury, neither of which is appropriate for a civil cause of action; (3) that the allegations against Quinlan with regard to ethical violations are solely within the jurisdiction of the New York State Grievance Committee and not proper for a civil cause of action; and, (4) insofar as a tort is alleged, the plaintiff was obligated to serve the Town of Brookhaven with Notice of Claim and the failure to have done so requires dismissal.
In opposition, as stated earlier, the plaintiff contends that the legal theory alleged in the complaint is solely based upon malicious prosecution and that the allegations of perjury, etc., are merely to show the basis for the malicious prosecution and not claims in and of themselves for which the plaintiff seeks relief. Moreover, the plaintiff also argues that the defendants acted outside of the scope of their municipal duties and, thus, are being sued as individuals and not as municipal employees. Accordingly, according to the plaintiff, no notice of claim was required and the defendants are not entitled to any immunity.
The court notes that the malicious prosecution is not specifically alleged in the complaint but, nevertheless, the elements required for such a claim are, at least with regard to Incagliato.
The elements required for a complaint sounding in malicious prosecution are: (1) that the underlying action or proceeding be terminated in the plaintiff's favor, (2) that the underlying action or proceeding was brought without probable cause, (3) that the defendants were the ones who commenced the underlying action or proceeding, and (4) the defendants brought the underlying action or proceeding with actual malice (citing Buccieri v Franzreb, 201 AD2d 356, 607 NYS2d 330 [1st Dept 1994]).
With regard to Incagliato, the complaint contains allegations of a termination of the criminal proceedings in Rahman's favor; that Incagliato was the one commencing the underlying criminal proceedings and that there could not be probable cause for either charging Rahman with being the owner of the subject premises (original accusatory instruments) or the agent of the owner (superceding accusatory instruments) since, according to Rahman (and not disputed by the defendants), there are no deeds or records which could possibly support such charges. Since Incagliato swears to the truth of his statements, acknowledges on the accusatory instruments that the making of a false statement in the instrument is perjury, and since he stated that the source of his information and belief was a copy of the certified deed and town records, none of which could possibly support such a belief (as contended by the plaintiff and not disputed by the defendants herein), the element of probable cause linking this plaintiff to any possible responsibility, criminal or otherwise to the cited violations is lacking. If such is the case, then Incagliato falsely swore to same and brought these charges without probable cause as to the individual accused thereof. In addition, since it is alleged that Incagliato commenced the underlying criminal proceeding by drawing up and signing the accusatory instruments, actual malice may be inferred as a matter of law from the lack of probable cause ( see Martin v Albany, 42 NY2d 13, 18, 396 NYS2d 612, 615; see also Strader v Ashley, 61 AD3d 1244, 1247, 877 NYS2d 747, 751 [3d Dept 2009]; Mesiti v Wegman, 307 AD2d 339, 341, 763 NYS2d 67, 70 [2d Dept 2003]).
Accordingly, a cause of action against Incagliato sounding in malicious prosecution can be found in the complaint and, thus, as to Incagliato, such a cause of action survives a motion to dismiss pursuant to CPLR 3211(a)(7). While ultimately proving this may be difficult, for purposes of surviving a motion to dismiss pursuant to CPLR 3211(a)(7), malicious prosecution is sufficiently pleaded.
However, to the extent that Incagliato is being sued in his capacity as a municipal employee, such a claim must be dismissed for the plaintiff's failure to serve the Town of Brookhaven with a notice of claim ( see GML § 50-i; Wright v City of Newburgh, 259 AD2d 485, 686 NYS2d 74 [2d Dept 1999][the notice of claim requirement applies to actions for malicious prosecution and other intentional torts]; see also Ruggiero v Phillies, 292 AD2d 41, 739 NYS2d 797 [4th Dept 2002]).
On the other hand, to the extent that Incagliato is being sued in his individual capacity — based upon his acts not being within the scope of his employment — this claim is adequately pleaded and survives the motion to dismiss. Here, the complaint sufficiently alleges that he acted outside of the scope of his employment when he swore in the original as well as the superceding accusatory instruments that a source of information for initially charging this plaintiff as the owner was based upon a copy of a certified deed and certified Brookhaven Town Building Department records when no such documents exist to support such ownership. Similarly, the same problem is raised with regard to the superceding accusatory instruments which say this plaintiff is the agent of the owner based upon the same sources which, allegedly, do not support that claim either.
Where a municipal officer directs the issuance of legal process — as it is alleged that Incagliato did here — and such process lacks any basis in law, then such acts do not afford absolute immunity to said official for such acts ( see Dean v Kochendorfer, 237 NY 384, 390 [1924]; Drake v City of Rochester, 96 Misc 2d 86, 100, 408 NYS2d 847, 857 [Sup Ct, Monroe County 1978]).
Of course, if it is ultimately shown at trial or by a motion for summary judgment that Incagliato was acting within the scope of employment then the complaint will have to be dismissed for the failure to have served a notice of claim. The immunity defense need not be addressed since it is rendered academic by either the ultimate finding that Incagliato was acting outside the scope of his employment or, if not, the acknowledged lack of a notice of claim.
Turning now to the claims against Quinlan, the complaint alleges, inter alia, that Quinlan was the Brookhaven Town Attorney and that he, "his agents servants or employees" knew or should have known that Incagliato's statements were falsely sworn to and by opposing this plaintiff's motion to dismiss in the District Court criminal action and by not revealing the false swearing, Quinlan violated Judiciary Law § 487) (Complaint, ¶ 14). The complaint also claims that the defendants conspired with each other to "suppress the truth" (¶ 15) and that, as a result of "abetting and suborning the perjury" of Incagliato by Quinlan and "his agents, servant and employees, the plaintiff was caused to incur additional sums of money and time to defend himself . . . (¶ 20).
What is clear from a reading of the complaint is that it is not clear what the underlying legal theory for recovery is. While the defendants speculate that it is basically for perjury and the suborning of perjury, the court disagrees and reads it as a claim for monetary damages due to the alleged unnecessary incurring of costs arising out of false charges. Indeed, as noted earlier, the plaintiff, in his opposition papers, contends that the underlying claim sounds solely in malicious prosecution.
As to Quinlan, the allegations in this case satisfy the elements of a termination of the underlying action in the plaintiff's favor (Amended Complaint, ¶ 18) and that the underlying action was brought without probable cause (¶¶ 7, 10, 13 and 16). With regard to the remaining necessary elements, the amended complaint only alleges that Incagliato "filed or caused to be filed the Instruments containing the false statement"; there is no allegation that Quinlan did so. In addition, as to actual malice, there is no specific allegation as to Quinlan and the plaintiff's argument that actual malice may be inferred as to Quinlan from the mere allegation that there was no probable cause to initiate the action ( citing Martin v City of Albany, 42 NY2d 13, 396 NYS2d 612) is inapplicable since there are no factual allegations that Quinlan or anyone in his office was involved with the drafting of the accusatory instruments. Indeed, there is no allegation that Quinlan represented that there was probable cause. Quinlan's only involvement, and that involvement was only in his capacity as the Town Attorney, was insofar as he or a member of his office represented the town in the prosecution of the charges brought by Incagliato. In that regard, the Town Attorney and his staff were entitled to immunity in the instant action because the superceding accusatory instruments (as well as the original accusatory instruments) were facially valid. Under such circumstances, the municipal official will not be held liable ( see Teddy's Drive In v Cohen, 47 NY2d 79, 416 NYS2d 782).
The failure to serve a notice of claim also bars this action as to Quinlan ( see GML § 50-i; Wright v City of Newburgh, 259 AD2d 485, 686 NYS2d 74 [2d Dept 1999]).
In short, the complaint fails to state a cause of action against Quinlan because it fails to sufficiently plead all the elements of malicious prosecution as to him, fails to show Quinlan was acting beyond the scope of his authority as Town Attorney and in view of there being no notice of claim as well as the entitlement to immunity, the complaint is dismissed as to Quinlan.
As to Quinlan's contention that legal ethics claims are solely within the jurisdiction of the New York State Grievance Committee, while that argument has merit, it will not be addressed as it is moot in view of the reasons for dismissal stated herein.
Accordingly, the complaint is dismissed as to Quinlan and Quinlan is severed from this action as provided herein; and, the complaint is not dismissed as to Incagliato.
The defendants' request for costs and/or sanction pursuant to 22 NYCRR 130-1.1, is denied as the action is not frivolous in view of the denial, in part, of this motion to dismiss.
Lastly, the court notes that the money damages being sought here are only $4,745.00. Since this amount is clearly within the civil jurisdictional limit of the District Court ($15,000.00) and since the calendar conditions of the District Court so permit, it is directed that this action be removed to the District Court as provided herein ( see CPLR 325[d]; 22 NYCRR 202.13[i]).
This constitutes the decision and order of the court.