relies on the service of a deposition subpoena on him, alleging that defendants made false statements to the Court in the Sequa Case regarding the necessity of deposing plaintiff, as a non-party witness, after he had already been deposed in the case as a party, and alleging further that the subpoena was misused.
For a plaintiff to prevail on an abuse of process claim based on the issuance of a subpoena, the plaintiff must allege and show that the subpoena was issued not to obtain material and necessary testimony but to achieve the collateral objective of exerting economic pressure on the other party to the action. See Board of Education v. Farmingdale Classroom Teachers Ass'n, 38 N.Y.2d 397, 403, 380 N.Y.S.2d 635, 643, 343 N.E.2d 278 (1975); Ginsberg v. Ginsberg, 84 A.D.2d 573, 574, 443 N.Y.S.2d 439, 441 (2d Dep't 1981). Here, the second amended complaint fails to meet these requirements as a matter of law.
First, the second amended complaint itself alleges that O'Brien was a "key witness in the case," referring to the Sequa Case. (Cmplt. P 64e). Indeed, at oral argument plaintiff's counsel conceded that plaintiff was "an important witness." (Tr. at 21). As of the time of oral argument in this case, O'Brien had testified for six days at the trial of the Sequa Case, and it was anticipated that he would need to testify for another five days or longer. (Id.). Hence, it is clear from the allegations of the second amended complaint itself and plaintiff's counsel's own statements that the subpoena was issued at least in part for a legitimate purpose -- to obtain plaintiff's admittedly material and necessary testimony. Plaintiff cannot show that the subpoena for his deposition was issued "without excuse or justification." The use of a subpoena to obtain admittedly important testimony simply cannot be an abuse of process.
Second, even assuming the subpoena and deposition were issued to "abuse and harass" O'Brien as the second amended complaint alleges, "[a] malicious motive alone . . . does not give rise to a cause of action for abuse of process." Curiano v. Suozzi, 63 N.Y.2d at 117, 480 N.Y.S.2d at 468 (citation omitted). Rather, the plaintiff must allege and show the misuse of process after it was issued. Id. Here, the second amended complaint contains no allegations about the misuse of the subpoena after it was issued other than the allegations that plaintiff was subjected to three days of deposition, purportedly resulting in lost compensation and general damages to his career and reputation. (See Cmplt. P 71). These types of damages, however, are insufficient to support an abuse of process claim. See Ann-Margret v. High Society Magazine, Inc., 498 F. Supp. 401, 407 (S.D.N.Y. 1980) (holding that "'interference' which results in a loss of business, injury to reputation, or expense arising from litigation [does not] constitute the type of interference with person or property necessary to sustain an abuse of process claim").
Since the allegations of the second amended complaint are insufficient to state an abuse of process claim, the second cause of action is dismissed.
3. New York Judiciary Law § 487
a. The February 1991 Meeting
Plaintiff alleges that defendant Alexander violated section 487 of the New York Judiciary Law by falsely assuring plaintiff that he would act as plaintiff's attorney during a meeting in February 1991, which led plaintiff to make certain statements that would later be used against him in the Sequa Case. Plaintiff also alleges that defendants Krinsly and Harmon aided and abetted Alexander in violating section 487.
Section 487 of the New York Judiciary Law is entitled "Misconduct by attorneys" and provides that an attorney in a pending lawsuit may not deceive or collude with intent to deceive the court or any party to that lawsuit. New York Judiciary Law § 487 (McKinney 1983).
Since no lawsuit was pending when the alleged representations in question were made (indeed, the alleged representations were purportedly made a year and a half before the commencement of litigation), plaintiff's claim must be dismissed, for section 487 by its terms applies only to statements made to the court or any party to a lawsuit. See Nardella v. Braff, 621 F. Supp. 1170, 1172 (S.D.N.Y. 1985); Bankers Trust Co. v. Cerrato, Sweeney, Cohn, Stahl & Vaccaro, 187 A.D.2d 384, 386, 590 N.Y.S.2d 201, 203 (1st Dep't 1992).
In response, plaintiff argues that the "essence of Alexander's deceit" when Alexander offered plaintiff his services was that he intended to make plaintiff a party to a planned lawsuit. Plaintiff acknowledges that no case law exists to support this contention, but rather asserts that it "surely lies within the ambit of the statute." (Pl. Mem. in Opp. to Motion to Dismiss at 9). Plaintiff's argument would require me to ignore the express language of the statute, and I will not do so.
Plaintiff's claims against defendants for violation of section 487 based on the February 1991 meeting are dismissed.
b. The Piszko Affidavit
Plaintiff's next claim is based on the affidavit signed by Edward Piszko. Plaintiff alleges that defendants violated Judiciary Law § 487 by preparing the Piszko affidavit, knowing it to be false, and using it as the basis for the purportedly groundless allegations that were made against O'Brien in the Sequa Case. Plaintiff also alleges that defendants wrote the false affidavit to deceive the Court in the Sequa Case into believing that defendants had genuine claims against plaintiff. Although the second amended complaint does not allege that the affidavit was submitted to the Court (as it apparently was not), it does allege that the Court "relied upon" the Piszko affidavit.
(Cmplt. PP 81a, 81, 82, 83).
Plaintiff's attempt at oral argument to circumvent section 487's requirement that false statements be made to the Court by stating that the false statements in the Piszko affidavit were used as the basis of the complaint against plaintiff is simply unavailing. Since the Piszko affidavit was not submitted to the Court, it cannot be the basis for a violation of section 487. See Nardella v. Braff, 621 F. Supp. at 1172; Bankers Trust Co. v. Cerrato, Sweeney, Cohn, Stahl & Vaccaro, 187 A.D.2d at 386, 590 N.Y.S.2d at 203.
What plaintiff really is alleging is that the defendants' claims against him in the Sequa Case were unfounded. That is an insufficient basis, however, for asserting a claim under section 487 of the Judiciary Law. See Thomas v. Chamberlain, D'Amanda, Oppenheimer & Greenfield, 115 A.D.2d 999, 497 N.Y.S.2d 561, 562 (4th Dep't 1985), appeal dismissed, 67 N.Y.2d 1005, 502 N.Y.S.2d 1006, 494 N.E.2d 111 (1986); see also Goldner v. Sullivan, Gough, Skipworth, Summers & Smith, 105 A.D.2d 1149, 1151, 482 N.Y.S.2d 606, 609 (4th Dep't 1984) (holding that absence of allegation of specific fraudulent or deceitful communication or statement to the court fatal to Section 487 claim).
I note that there are two facts alleged in this cause of action that plainly are inaccurate and are extremely misleading. First, paragraph 83 of the second amended complaint alleges that the Court in the Sequa Case "relied upon the Piszko affidavit," when that clearly is not the case. Plaintiff concedes in his memorandum of law that the affidavit was not filed with the Court. (Pl. Mem. in Opp. to Motion to Dismiss at 12).
Second, paragraph 84 of the second amended complaint suggests that the Court in Sequa somehow held that defendants' claims against plaintiff in the Sequa Case were deficient or groundless.
As discussed above, however, Judge Haight made no such ruling. The fact that defendants chose to discontinue their claims against plaintiff, without prejudice, rather than pay for his legal fees to defend against those very claims is not surprising, but hardly an admission that those claims were groundless.
Accordingly, plaintiff's claim of violation of section 487 of the New York Judiciary Law based on the Piszko affidavit is dismissed.
In the fifth cause of action of the second amended complaint, plaintiff alleges that defendants defamed him by making and repeating numerous false statements to various people. Plaintiff claims that defendants made false accusations about him in February 1993 to officers of Trac Lease, Inc. (Cmplt. PP 91b, c). He claims further that certain of the defendants repeated the defamatory remarks during a meeting with officers of Trac Lease, Inc. in October 1994, during which defendants asked the Trac Lease, Inc. representatives to testify in the Sequa Case. (Cmplt. PP 91d). Plaintiff also complains of several allegedly defamatory statements made during the course of the Sequa Case, including comments allegedly made (i) to Leonard Nave during a deposition in August 1993 and later at a meeting in February 1994, (ii) during defendant Brodsky's opening remarks at trial of the Sequa case, (iii) in the Piszko Affidavit, (iv) in the Sequa complaint, and (v) to Herschel Salan, a former employee of SCC, in an effort to get him to testify against at trial. (Cmplt. PP 88, 91g, h, i, j).
Plaintiff's defamation claims must be dismissed, for they are deficient as a matter of law.
First, the statute of limitations for defamation claims under New York law is one year. See N.Y. Civ. Prac. L. & R. § 215(3) (McKinney 1990).
Thus, plaintiff's claim for defamation based on the statements to the Trac Lease officers in February 1993, more than one year prior to the filing of the lawsuit (July 1994), is time-barred. Accordingly, plaintiff's claim for defamation based on these statements is dismissed.
Second, the statements made to the Trac Lease officers in October 1994, to Leonard Nave, in defendant Brodsky's opening statement at trial, in the Piszko Affidavit, in the Sequa complaint, and to Salan cannot form the basis of a defamation claim since they are absolutely privileged.
Under New York law, "in the context of a legal proceeding, statements by parties and their attorneys are absolutely privileged if, by any view or under any circumstances, they are pertinent to the litigation." Grasso v. Mathew, 164 A.D.2d 476, 564 N.Y.S.2d 576, 578 (3d Dep't), appeal dismissed, 77 N.Y.2d 940, 569 N.Y.S.2d 613, 572 N.E.2d 54 (1991). See also Bridge C.A.T. Scan Associates v. Ohio-Nuclear Inc., 608 F. Supp. 1187, 1197 (S.D.N.Y. 1985); Park Knoll Associates v. Schmidt, 59 N.Y.2d 205, 464 N.Y.S.2d 424, 451 N.E.2d 182 (1983). The test of "pertinency" is extremely broad:
The absolute privilege embraces anything that may possibly or plausibly be relevant or pertinent, with the barest rationality, divorced from any palpable or pragmatic degree of probability.