Decided September 30, 2004.
On November 23, 2003, plaintiff commenced an action against the defendant by filing a summons and verified complaint with the Kings County Clerk. The complaint sets forth twenty five allegations of fact in support of one cause of action for malicious prosecution based on defendant's commencement of three Family Court proceedings and one Criminal Court complaint against the plaintiff. Defendant contends that the plaintiff's complaint does not state a cause of action and merits sanctions as frivolous.
The undisputed facts establish that the parties were married on May 21, 1989 in Brooklyn, New York. They have a daughter born on October 29, 1989, and a son born on March 10, 1992. By written agreement dated April 22, 2001, the parties legally separated. On June 19, 2001, defendant's action for divorce was resolved by a divorce judgment issued by the Kings County Supreme Court. The divorce judgment incorporated the parties' separation agreement and granted the defendant, among other things, custody of their children, six hundred dollars of monthly child support payments, and additional child support for the children's unreimbursed medical and school expenses. The judgment also granted the Family Court concurrent jurisdiction with the Supreme Court on issues of maintenance, support, custody and visitation.
On April 16, 2002, defendant commenced three separate civil proceedings against the plaintiff in Kings County Family Court. Pursuant to Article 8 of the Family Court Act, defendant filed a petition, under docket number O-08296/02, alleging that the plaintiff committed certain family offenses. Family Court Judge Arnold J. Lim found that there was good cause shown to issue the defendant a temporary order of protection restraining the plaintiff from assaulting, harassing, menacing or threatening her. The petition was eventually dismissed.
On April 16, 2002, defendant filed a petition under Article 6 of the Family Court Act, under docket number V-08323-4/02, seeking a modification of an order of custody and visitation. The petition alleged, among other things, that the plaintiff had been acting abusively and irrationally. Defendant also claimed that the plaintiff threatened to remove their children out of the jurisdiction. Defendant was seeking an order preventing the plaintiff from carrying out the alleged threat. She also sought an order striking that portion of the parties' prior custody order which gave the children, on their fourteenth birthday, a right to choose their custodial parent.
On April 16, 2002, defendant filed a petition under Article 4 of the Family Court Act, under docket number F-03212/02, requesting a modification of their prior child support order based on a change of circumstance. After an evidentiary hearing, the court found that the change in defendant's circumstance was not significant enough to warrant an upward modification of plaintiff's child support payments. The court then dismissed the petition.
On or about June 10, 2002, plaintiff appeared in part AP-4 of the Kings County Criminal Court for arraignment under docket number 2002KN030074 on charges of aggravated harassment and other offenses based on the complaint of the defendant. On that date, Judge Posner issued an order of protection directing the plaintiff to stay away from the defendant and refrain from assaulting, harassing, menacing or threatening her. Judge Posner's order advised the plaintiff that he was also subject to the order of protection issued by the Kings County Family Court. The plaintiff signed the order to acknowledge his receipt of same.
On October 9, 2002, in part AP-4 of the Kings County Criminal Court, Assistant District Attorney Bryan Coleman orally moved to dismiss the aforementioned criminal complaint claiming that the complainant was not cooperating with the District Attorney's office. Judge Lila Gold granted the request.
The defendant has moved for an accelerated judgment of dismissal pursuant to CPLR § 3211(a)(7). By this procedural devise, defendant seeks an order dismissing plaintiff's complaint without having to answer its allegations. This motion is made before defendant has interposed an answer and thus before issue is joined. In order to prevail, the defendant must convince the court that nothing the plaintiff can reasonably be expected to prove would help make out the cause of action (Siegel's New York Practice § 265).
In Smith-Hunter v. Harvey, decided on June 6, 2000, the Court of Appeals set forth the standard for malicious prosecution claims pertinent to a criminal proceeding.
"While the tort of malicious prosecution protects against the consequences of wrongful prosecution, public policy favors bringing criminals to justice, and accusers must be allowed room for benign misjudgements. The law therefore places a heavy burden on malicious prosecution plaintiffs, requiring that they establish four elements:
"(1) the commencement or continuation of a criminal proceeding by the defendant against plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice" (Smith-Hunter v. Harvey 95 NY2d 191, 196 ).
The Court of Appeals held that any termination of a criminal prosecution, such that the criminal charges may not be brought again, qualifies as a favorable termination, so long as the circumstances surrounding the termination are not inconsistent with the innocence of the accused. The Court rejected the notion that the termination must affirmatively demonstrate the accused's innocense, stating that the law "should not require one who is falsely and maliciously accused to proceed to trial — incurring additional financial and emotional costs — as a prerequisite to recovery for malicious prosecution" ( Smith-Hunter v. Harvey, supra 95 NY2d at 199; see also Cantalino v. Danner, 96 NY2d 391, 396).
Several types of terminations do not qualify as "favorable" at common law, since they are fundamentally inconsistent with innocence. For instance, where a prosecution fails to go forward because of misconduct by the accused preventing a proper trial, the termination cannot be considered favorable. Similarly, if a prosecution ends because of a compromise with the accused, the termination is not favorable. The same rule applies if charged are dismissed out of mercy, since mercy presupposes the guilt of the accused (see, Smith-Hunter v. Harvey, supra, at 196-197).
Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty ( Colon v. City of New York, 60 NY2d 78, 83; see also Butler v. Ratner 210 AD2d 691, 694 [3rd Dept 1994]).
Because "obviously less in the way of grounds for belief will be required to justify a reasonable man in bringing a civil rather than a criminal suit" when the underlying action is civil in nature the want of probable cause must be patent. ( see, Prosser and Keeton, Torts §§ 120, at 893 [5th ed]; significantly, the issuance of a temporary injunction or similar judicial recognition of the merit of the underlying case creates a presumption of probable cause and places upon the plaintiff the burden of pleading facts sufficient to overcome it ( Hornstein v. Wolf, 67 NY2d 721; Butler v. Ratner, supra 210 AD2d at 693-694).
Plaintiff brings an action for malicious prosecution based on the defendant's initiation of three Family Court proceeding and one Criminal Court complaint against him. Apart from those facts which the court has found to be undisputed, the plaintiff's allegations of fact regarding the defendant's malicious motives and intentions are merely conclusory allegations. Although plaintiff's underlying complaint for malicious prosecution alleges that the three Family Court proceedings were dismissed, the pleadings fail to allege facts sufficient to demonstrate that the proceedings terminated favorably.
The three Family Court complaints were all initiated on the same date. The proceedings commenced, pursuant to Article 6 and Article 8 of the Family Court Act, alleged acts by the plaintiff which constituted family offenses and which supported defendant's desire to modify the prior custody order. The Family Court judge presiding over the family offense issued a temporary restraining order enjoining the plaintiff from assaulting, harassing, menacing or threatening the defendant. This fact alone creates a presumption of probable cause against the plaintiff in these two interrelated proceedings and places upon him the burden of pleading facts sufficient to overcome it ( Hornstein v. wolf, supra, 67 NY2d 721; Butler v. Ratner, supra 210 AD2d at 693-694). The plaintiff's pleadings did not meet this burden.
Turning to the proceeding commenced pursuant to Article 4 of the Family Court Act, defendant sought an upward modification of a child support order based on a change of circumstance. This type of proceeding is premised on the continuing obligation of parents to support their minor children and the reality that financial circumstances are subject to constant change. It would be an extraordinary and remarkable set of facts that would support a claim of malicious prosecution in this type of proceeding. Plaintiff's pleading do not. In particular, his pleadings do not meet the burden to show lack of probable cause and actual malice by the defendant. Indeed the hearing examiner who determined the facts of this proceeding found that the alleged change in circumstance, while real, was not significant enough to warrant an upward modification of child support. It is noted, that neither the pleadings set forth in the plaintiff's underlying complaint or the pleadings in opposition to the instant motion deny the allegations of plaintiff's conduct made in the family offense proceeding, under docket number O-08296/02, or in the aforementioned criminal court complaint.
With regard to the criminal complaint against the plaintiff, there is no dispute that Criminal Court Judge Posner issued a temporary restraining order directing plaintiff to stay away from the defendant and refrain from assaulting, harassing, menacing or threatening her. The language of the order also advised the plaintiff that he was also subject to the order of protection issued by Kings County Family Court. Once again, the issuance of a temporary injunction creates a presumptive of probable cause and places upon the plaintiff the burden of pleading facts sufficient to overcome it. Once again the plaintiff's pleading did not meet this burden. Furthermore, the pleadings fails to demonstrate that the criminal action ended in a manner which precludes its reinstatement, the sina qua non of a favorable termination of the action. The plaintiff's cause of action for malicious prosecution is fatally defective based on the plaintiff's failure to show that the four proceedings in question were commenced without probable cause. For the foregoing reasons, the defendant's motion to dismiss plaintiff's complaint pursuant to CPLR § 3211(a)(7) is granted.
The court now turns to defendant's request for an order sanctioning the plaintiff. The claim is premised in part on a contention that plaintiff's cause of action is without merit in law or undertaken to harass or maliciously injure her. Inasmuch as the parties were given an opportunity to give oral argument on record, the court finds that defendant had due notice that the issue of sanctions would be considered ( First National Bank v. Van Allen, 277 AD2d 859 [3rd Dept. 2000]).
Pursuant to the Rules of the Chief Administrator of the Courts Part 130 as set forth in 22 NYCRR § 130-1.1(a), the court may award to any party or attorney in a civil matter costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney fees, resulting from frivolous conduct.
For the purpose of this Part conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false ( 22 NYCRR 130-1.1(c)).
The decision as to whether to award sanctions is within the sound discretion of the court. (Wagner v. Goldberg, 293 AD2d 527 [2nd Dept., 2002]). In order to impose sanctions, the court must find that plaintiff's cause of action asserts material falsehoods or is without legal merit and undertaken primarily to delay or prolong the litigation, or to harass or maliciously injure another ( Premier Capital v. Damon Realty Corp., 229 AD2d 158 [1st Dept. 2002]; see also Jason v. Dumel, 3 Misc.3d 1101(A), [NY Sup 2004]).
The court does not find that plaintiff's commencement of a cause of action for malicious prosecution to be frivolous conduct within the meaning of aforementioned rules. The determination to dismiss plaintiff's underlying complaint does lends support to the conclusion that the lawsuit was frivolous. However, the court does not find that the lawsuit was completely without merit in law.
Plaintiff's lawsuit, as a newly commenced action, cannot be said to be undertaken to delay or prolong litigation in the underlying suit. Also defendant's allegation of fact claiming that plaintiff's lawsuit was commenced to harass or injure her are conclusory in nature and thus do not support a request for sanctions. The defendant does not allege in the instant motion that there were material falsehoods in the complaint but rather that it was patently frivolous. Furthermore, the court relied upon the allegations of fact in plaintiff's complaint and assumed them to be true in reaching the decision to dismiss it pursuant to CPLR § 3211(a)(7). Therefore, the court need not and does not pass on the credibility of the claims therein. For all the foregoing reasons defendant's request for sanctions is denied
The foregoing constitutes the decision and order of this court.