that all the parties to this action had been deposed, plaintiff had failed to point to any defamatory statement by any of these defendants such as would allow these claims to survive summary judgment. As to defendants Nephew and Sager it was clear that no evidence had been presented that they made false statements about plaintiff: indeed at his own deposition plaintiff indicated his belief that neither Nephew nor Sager had made any false statements about him. (Gray Dep. at 47-60).
Neither did plaintiff in his affidavit or memorandum of law in opposition expressly point to any single defamatory statement made by defendant Millea. The Court noted in that regard that plaintiff's attorney had failed to file an affidavit with his memorandum of law. It appeared that plaintiff's attorney's only theory was that based on the foregoing events one of the defendants must have said something defamatory to someone: of course such a posture is wholly inappropriate on a post-discovery motion for summary judgment.
More importantly in regard to the issue of sanctions, the absolutely undisputed chronology
of events plaintiff points to compels the conclusion that, even under plaintiff's "some defendant must have said something defamatory to someone" theory, any such hypothetical defamatory statement must have been made, at the latest, before June 18, 1992. New York provides a one year statute of limitations for libel and slander. See N.Y. Civ.Prac.Law § 215 Subd.3 (McKinney's 1990 & 1995 Supp.); Stockley v. AT & T Information systems, Inc., 687 F. Supp. 764, 767 (E.D.N.Y. 1988). Plaintiff's complaint was filed on March 1, 1994. It follows then that only defamations uttered on or after March 1, 1993 would fall within the one year limitations period. As such, the last possible publication date of the defamatory material upon which plaintiff sought to rely was well outside the statute of limitations.
On March 13, 1995, defendants' attorneys prepared and sent plaintiff's attorney a letter following up earlier discussions and pointing out "as we explained both before and after the depositions, it is our position that there is absolutely no basis, in law or in fact, for your allegations against our clients. Indeed we cannot fathom how, in light of the deposition testimony, you could continue to pursue this litigation." (Oliver Aff., Ex. 1). In that letter defendants' attorney also pointed out that "even aside from the absence of any evidence that any of the defendants ever lied, your claims are entirely barred as a legal matter, both by the statute of limitations, and because any such statements would be privileged." (Oliver Aff., Ex. 1). Plaintiff never reacted to Defendants' letter. Defendants also argued their straightforward and uncontestable statute of limitations defense in their Summary Judgment Motion but again, plaintiff completely ignored that issue in his memorandum of law.
Eighty percent of plaintiff's written filings on motion addressed defamation issues. At oral argument plaintiff's attorney spent well over 90% of his allotted time arguing his defamation claims. When the Court inquired about the statute of limitations during argument on sanctions, however, plaintiff's attorney astoundingly and indisputably disingenuously reiterated his position, first maintained in his Memorandum in Opposition to Sanctions: that, in his own words, "defamation was not the gravamen of plaintiff's complaint."
(2). Plaintiff's Claims of Malicious Prosecution:
The elements of malicious prosecution are well settled in New York. In his claim for malicious prosecution plaintiff had to establish 1) that the defendant either commenced or continued a criminal proceeding against him; 2) that the proceeding terminated in his favor; 3) that there was no probable cause for the criminal proceeding; and 4) that the criminal proceeding was instituted with actual malice. See Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991); Broughton v. State, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert den'd, 423 U.S. 929 (1975); Angel v. Kasson, 581 F. Supp. 170, 175 & n.9 (N.D.N.Y. 1983). Furthermore, under New York law a request that the plaintiff be prosecuted is the minimum action necessary to sustain a claim under malicious prosecution. See Raysor v. Port Authority, 768 F.2d 34, 39 (2d Cir. 1985), cert. den'd, 475 U.S. 1027 (1986). On motion plaintiff offered no evidence that these defendants instigated or commenced a criminal proceeding against him.
Plaintiff also stated various claims for abuse of process in his complaint. While never withdrawn those claims were nowhere raised, supported or defended on motion and were likewise dismissed.
(3). Plaintiff's Interference With Contract, Breach of Contract and Prima-Facie Tort Claims:
Plaintiff's legal theory regarding these various contract claims simply could not be discerned from plaintiff's memorandum of law. Nowhere were the facts of this case applied to the relevant law controlling such claims. Again the Court notes plaintiff's attorney's failure to file an affidavit.
Although plaintiff argued prima-facie tort in his memo of law, no such claim was stated in plaintiff's complaint. Furthermore, no facts in support of such a claim were argued on motion or developed in the filings: in his memorandum of law plaintiff's attorney merely stated the elements of such a claim and moved on.
Nowhere did plaintiff even clarify exactly what contract he was attempting to put at issue on his interference with contract and breach of contract claims.
Furthermore, the tort of interference with contract requires at minimum, proof that defendants' acts were without reasonable justification. See Israel v. Wood Dolson Co., 1 N.Y.2d 116, 151 N.Y.S.2d 1, 134 N.E.2d 97 (1956). Plaintiff nowhere produced evidence either showing the absence of reasonable justification or contravening defendants' overwhelming evidence of justification.
In short, the Court, after a thorough review of plaintiff's Complaint and the exhibits, affidavits, and the filings of the parties in reference to this motion, concluded that summary judgment had to be granted for the defendants.
a. Rule 11:
Defendants' have moved for sanctions under Fed.R.Civ.P. 11 and the inherent equitable powers of the court. As written, Rule 11 imposes an affirmative duty on the signer to make a reasonable inquiry on the viability, legally and factually, of claims made in pleadings written motions and other papers filed with the court. Eastway Construction Corp. v. New York, 762 F.2d 243, 253 (2d Cir. 1985). In pertinent part, Rule 11(b) states:
By presenting to the court (whether by signing, filing, submitting or later advocating) a pleading, written motion, or other paper, an attorney . . . is certifying that to the best of the person's knowledge, information, and belief formed after inquiry reasonable under the circumstances,--
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;