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April 29, 1970

John DORAK, a/k/a Peter Dorak, Plaintiff,
COUNTY OF NASSAU OF the STATE OF NEW YORK, Defendant (two cases). John DORAK, Plaintiff, v. William CAHN, Defendant

Travia, District Judge.

The opinion of the court was delivered by: TRAVIA

TRAVIA, District Judge.

The three above-entitled actions were consolidated at the time of the argument of the three motions which were brought by the defendants because the actions have a common factual background.

 In November 1939, plaintiff was arrested for arson. He alleges he was arrested without a warrant or probable cause, by Detective John L. Goebel, an employee of Nassau County, and that he was coerced into confessing to the arson. Without a preliminary hearing and without an attorney, plaintiff was held without bail. An indictment was returned on November 14, 1939, based solely on the alleged confession. While he was without the representation of an attorney, plaintiff pleaded guilty to the charge and was psychiatrically examined and reported to be a mental defective. On November 30, 1939, plaintiff was committed to the Napanoch Institute for the Mentally Defective. On April 4, 1941, he was transferred to Dannemora State Hospital and in October 1966, he was transferred to Binghamton State Hospital. Plaintiff was finally discharged on July 27, 1967. On June 28, 1968, plaintiff's guilty plea was set aside, without objection by the District Attorney.

 On September 16, 1968, plaintiff served a notice of claim against the County of Nassau for false imprisonment and "illegal confinement." In October 1968, he was notified by the Nassau District Attorney that prosecution under the 1939 indictment would be pressed. On March 3, 1969, plaintiff was rearrested and he pleaded not guilty. Plaintiff claims that the prosecution was reinstituted because of the pendency of his civil suit against the county in the hope that the possible criminal trial would induce him to give up his civil action. *fn1"

 In connection with the revived prosecution, a Huntley hearing was scheduled to determine the voluntariness of plaintiff's 1939 confession. Detective Goebel was then living in Florida and declined the Nassau District Attorney's request to return to New York to testify unless he was paid $2,000. In order to secure his presence as a witness, the District Attorney instituted proceedings under the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases, N.Y.C. Cr. P. § 618-a. That act, C. Cr. P. § 618-a(3), provides for fees of 10 cents per mile and $5.00 per day for each day of attendance as a witness. A New York judge issued a certificate under the Act and an extradition hearing was held in Florida on February 26, 1969. During a recess, plaintiff contends, an illegal agreement was made between the District Attorney and the witness for payments in excess of the statutory amount and for transporting the witness and his wife to New York and then back to Texas (instead of Florida). In return therefor, plaintiff contends, the witness agreed not to invoke the Fifth Amendment. Plaintiff alleges that these agreements and payments were beyond the jurisdiction and power of the District Attorney.

 Plaintiff further alleges, though without specification, that the witness Goebel perjured himself at the Huntley hearing which was subsequently held. The finding of the Court upon the Huntley hearing was that the confession was, beyond a reasonable doubt, voluntarily made.

 After losing at the Huntley hearing, plaintiff moved under N.Y.C. Cr. P. § 671 for a dismissal of the 1939 indictment "* * * in the furtherance of justice." Acting under this section, Judge Alexander Vitale dismissed the indictment on October 7, 1969, in an opinion in which he stated:

"And, in conclusion, it should be noted the power of the Court to discontinue prosecution of a crime as given to it by the Legislature in Section 671 of the Code of Criminal Procedure, has little or nothing to do with the merits of the charge. Such a dismissal is concerned, as the statute states, solely with the interest of justice. * *
It is my opinion that justice would not be served by a trial hereof, but rather its interests would be enhanced by the dismissal of this action and the indictment from which it stems. * *"

 In Dorak v. County of Nassau, 69-C-485, the first of the above actions, many of plaintiff's allegations are essentially the same as those which were alleged in Dorak v. County of Nassau, 69-C-296, a complaint for false imprisonment and "illegal confinement" which was dismissed on the merits on June 23, 1969, from which judgment an appeal is pending. To the extent that these allegations are made to state a cause of action in the complaint in 69-C-485, they are res judicata between the parties. However, these allegations appear to be presented as background for the present action for abuse of process. To that extent, no res judicata effect applies to the earlier judgment.

 Plaintiff claims that the defendant, by its employee, the District Attorney, abused the legal process in the use of the extradition proceeding to bring the witness Goebel from Florida to New York, in that the provisions of § 618-a were not complied with when the District Attorney offered to make a payment to Goebel in excess of the statutory amount and to fly him back to Texas and then to Florida after testifying. Abuse of the criminal process is also alleged in that the defendant allegedly sought to force plaintiff to give up his civil suit, 69-C-296, against the County. The injury alleged is that "* * * the plaintiff is being subjected to anxiety, fear, and threats of a 15-year sentence, scorn, ridicule, derision, great harassment. * *"

 In an action for abuse of process, "* * * there must be an unlawful interference with one's person or property under color of process. * * *" Williams v. Williams, 23 N.Y. 2d 592, 596, 298 N.Y.S. 2d 473, 476, 246 N.E. 2d 333, 335 (1969). Such interference must be alleged in the complaint. Id. The same is true for a claim of malicious prosecution. 298 N.Y.S. 2d 473, 246 N.E. 2d 333. An allegation of the "* * trouble, inconvenience, and expense of defending [the underlying] action * * is not sufficient." Doane v. Hescock, 155 N.Y.S. 210, 211 (Sup. App. T., 1st Dept. 1915), aff'd, 173 App. Div. 966, 159 N.Y.S. 1109 (1st Dept. 1916); accord Miller v. Stern, 262 App. Div. 5, 27 N.Y.S. 2d 374 (1st Dept. 1941).

 The use of legal process, such as "'* * * attachment, execution, garnishment, or sequestration proceedings, or arrest of the person, or criminal prosecution * * *'" Williams v. Williams, supra, 23 N.Y. 2d at 596 at n. 1, 298 N.Y.S. 2d at 477, 246 N.E. 2d at 335, for an improper purpose, other than the purpose for which it was issued, is the essence of the cause of action for "abuse of process." Hauser v. Bartow, 273 N.Y. 370, 7 N.E. 2d 268 (1937); Dean v. Kochendorfer, 237 N.Y. 384, 143 N.E. 229 (1924). Improper motives are insufficient unless the process was improperly used. Hauser v. Bartow, supra, 273 N.Y. at 374, 7 N.E. 2d 268. "As soon as the actor uses the process of the court, not to effect its proper function, but to accomplish through it some collateral object, he commits this tort." Id. (emphasis in original).

 However, if the improper object for which the process is sought to be used is not alleged to have been achieved, a complaint for abuse of process is not adequate, since there must be a compulsion to do something which could not be required and some right must have been given up. Leif v. Jacobs, 61 N.Y.S. 2d 207 (City Ct., N.Y.C. 1946); Italian Star Line v. United States Shipping Board E.F. Corp., 53 F.2d 359, 362 (2d Cir. 1931). Where the process is used to force the giving up of a right, but the right is not given up, the damages ...

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