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CUILLO v. SHUPNICK

March 11, 1993

ROBERT CUILLO, individually and as the former Regional Bailli southeast USA, GLEN KING PARKER, individually and as the former Bailli de Fort Lauderdale, and JOANNE CUILLO, individually and as the former Bailli de Palm Coast, Plaintiffs,
v.
LARRY SHUPNICK, HOWARD I. HALPERN, FRANK CAVA, JOHN S. DUARTE, III, JOSEPH M. GIRARD, DOYLE N. ROGERS, M.D., ANTHONY J. LaBARBA, HARRY L. BRESLAU, JULES I. EPSTEIN, LOUIS BLACHER, individually and as members of the Board of Directors of the CONFRERIE de la CHAINE des ROTISSEURS, LTD., and the CONFRERIE de la CHAINE des ROTISSEURS, Defendants.


SWEET


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 The Defendants, all members of the Board of Directors of the Confreries de la Chaine des Rotisseurs, Ltd. ("La Chaine") *fn1" have moved to dismiss the claims of the Plaintiffs, all members and former members of La Chaine, *fn2" of malicious prosecution, abuse of process, and violation of their rights under the First and Fourteenth Amendments, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. For the reasons given below, the Defendants' motion is hereby granted.

 Facts

 On a motion to dismiss, the facts are alleged by the Plaintiffs are assumed to be true, Easton v. Sundram, 947 F.2d 1011, 1014 (2d Cir. 1991), cert. denied, 118 L. Ed. 2d 548, 112 S. Ct. 1943 (1992), and as set forth below do not represent any findings of fact by this Court.

 La Chaine is a non-profit corporation organized under the laws of New York to promote, foster and encourage the culinary arts. "Rotisseur" means cook (or more precisely "roaster") in French, and the organization itself is an affiliate of a culinary "confrerie" in France of the same name. *fn3" La Chaine's national chapters (known as "Balliages") are divided up by geographic region, each of which is presided over by a Regional Bailli. La Chaine's Board of Directions, accordingly, is comprised of individuals who reside all over the country; in this action, the Plaintiffs are domiciled in Florida and Washington, and the defendants are domiciled in California, New York, Texas, Georgia, New Jersey, Louisiana, and Illinois.

 On October 20, 1989, the Board of Directors of La Chaine appointed a committee to redraft and amend the by-laws of the institution. Plaintiff Robert Cuillo ("Cuillo") was one of the four Directors of La Chaine appointed to this committee; the other three, Doyle Rogers ("Rogers"), Joseph M. Girard ("Girard"), and Jules I. Epstein ("Epstein"), have been named as Defendants in this lawsuit. The Committee drew up a revised set of by-laws, but only over the objections of Cuillo.

 When the Committee reported that the revised by-laws were ready, Cuillo requested that Girard not circulate the new by-laws. Cuillo believed these were not in compliance with the New York Not-for-Profit Corporation law, since they permitted only existing Directors, not the general membership, to vote for the election of the Board of Directors at La Chaine's annual meeting. After Girard refused to halt the circulation of the new draft, Cuillo called Larry Shupnick ("Shupnick"), acting National President of La Chaine, to ask him not to distribute the by-laws to the Board. When Shupnick failed to respond, Cuillo and the other Plaintiffs circulated a letter on November 22, 1989, to the general members of La Chaine advising all of the alleged deficiencies in the revised by-laws.

 The Plaintiffs objected to the composition of the review committee (especially since it included Rogers, who had been on the original committee which drafted the new by-laws), and concluded that any application for reinstatement through it would be futile. Instead, on April 11, 1990, the Plaintiffs instituted an Article 78 proceeding in New York to review the process by which they were expelled and to mandate their reinstatement. They named as defendants the individual members of the Board of Directors of La Chaine, including Shupnick, Girard, Rogers, and Epstein. The Defendants served an Answer and Counterclaims on January 16, 1990, which included causes of action for malicious prosecution, abuse of process, and defamation.

 The Plaintiffs moved to dismiss the counterclaims, which was granted by an order dated July 3, 1990, from Justice Saxe. He dismissed the Defendants' action for malicious prosecution on the grounds that the underlying action had not yet been decided in favor of the Defendants. He dismissed the action for abuse of process on the grounds that the Defendants could not show that process had been abused or used for any ulterior purpose. He dismissed the defamation claim on the grounds that the Plaintiffs' letter to the general membership of La Chaine dated November 22, 1989, was an expression of mere opinion made in the context of a political dispute. Finally, the order reinstated the Plaintiffs with full rights and privileges pursuant to their Article 78 petition. Over a year later, in the spring of 1992, Plaintiffs then filed this action in Federal court alleging in turn malicious prosecution, abuse of process, and violation of their constitutional rights on the part of the Defendants.

 Malicious Prosecution

 In their Answering Affidavit in Opposition to Defendant's Motion to Dismiss, the Plaintiffs consent to the dismissal of their first cause of action (malicious prosecution), on the grounds that it is time-barred by the one-year ...


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