removal of the plaintiffs from membership in La Chaine; however, on December 21, 1989, Justice David Saxe ("Justice Saxe") of the New York Supreme Court vacated the TRO. The Board held another special meeting on January 4, 1990, and promptly terminated the Plaintiffs' memberships for "irresponsibility, improper and unbecoming conduct" based on the letter to the general members criticizing the new by-laws and on the fact they had instituted litigation against La Chaine. The Board did appoint a review committee and told the Plaintiffs they could apply through it for reinstatement.
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.
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 statute of limitations in CPLR § 215(3) (McKinney 1992).
Prima Facie Tort
The Plaintiffs have also mentioned prima facie tort in their Memorandum of Law in Opposition, although they have not alleged it as a count in their complaint. A prima facie tort (unjustified harm intentionally inflicted) exists only where no traditional tort is appropriate; once a traditional tort is established, the harm complained of is used to support that charge, and the prima facie tort claim disappears. Curiano v. Suozzi, 63 N.Y.2d 113, 480 N.Y.S.2d 466, 469, 469 N.E.2d 1324 (1984). Since the harms which the Plaintiffs complain of are fully covered by their other causes of action, no adequate claim of prima facie tort may be alleged here. Additionally, an allegation of prima facie tort also requires allegation of special damages which the Plaintiffs have not made. Id.
Abuse of Process
Defendants allege that the Plaintiffs' second cause of action, for abuse of process, is time-barred by a one-year statute of limitations and by the fact that an initial pleading, as a matter of law, cannot give rise to an abuse of process claim. The Plaintiffs respond that, because abuse of process is not specifically listed as an intentional tort governed by the one-year statute of limitations set forth in CPLR § 215(3) for intentional torts, it is governed by the three-year statute of limitations for all torts which are "injuries to the person or to property" found in CPLR § 214(5).
CPLA § 214, which governs actions covered by a three-year statute of limitations, lists actions to recover damages for an injury to property or for personal injury among several other items. CPLR § 215, which governs actions covered by a one-year statute of limitations, lists
(3.) an action to recover damages for assault, battery, false imprisonment, malicious prosecution, libel, slander, false words causing special damages, or a violation of the right of privacy under section fifty-one of the civil rights law,
among other actions, such as actions against certain state or county officials. All the actions listed in CPLR § 215(3) are intentional torts, though the section itself does not include this term.
The Plaintiffs have cited two cases in their favor, Levine v. Sherman, 86 Misc. 2d 997, 384 N.Y.S.2d 685 (N.Y.Sup.Ct. 1976), noted in passing by Pico Prods. v. Eagle Comtronics, 96 A.D.2d 736, 465 N.Y.S.2d 628 (4th Dept., 1983). Pico does not examine the issue, but the court in Levine states that although "logic might suggest that we include abuse of process with the one-year actions it resembles" the CPLR "offers a complete list of the one-year actions." 86 Misc. 2d 997, 999, 384 N.Y.S.2d 685, 687. Since only the legislature could add to the list, the court reasoned, it was constrained to include abuse of process actions under the three-year statute of limitations prescribed for personal injury.
Although the Court of Appeals has never spoken on the issue, in the time since Levine was decided the Appellate Divisions of the First, Second, and Third Departments have held that abuse of process is governed by a one-year statute of limitations as an intentional tort. In Bittner v. Cummings, 591 N.Y.S.2d 429, 430 (2d Dep't 1992), the court wrote:
The operative distinction between causes of action governed by the one-year Statute of Limitations (CPLR 215), and those within the scope of the three-year Statute of Limitations (CPLR 214(5)) is whether the cause of action sounds in an intentional tort or sounds in negligence . . . . Abuse of process and malicious prosecution are both intentional torts which are governed by CPLR 215, the one-year statute of limitations.