remember the information that he disclosed, but did remember feeling that it was very difficult to answer the questions without disclosing his strategy in Scholz's case. ( Id. at 56.)
Engel also testified that he had tremendous difficulty preparing papers because the things he wanted to say in his own defense were counterproductive to pending motions made by CBS against Scholz. ( Id. at 48-49.) Engel described one example which occurred when he argued his own motion for summary judgment on the same day that CBS argued a motion to enjoin Scholz from performing. The papers in connection with those motions involved contradictory theories. After Engel prepared the papers in his own defense, he looked at them from Scholz' perspective and took out certain items that he felt might negatively influence the judge with respect to Scholz. Engel testified that this process was "not only technically difficult" but that it was "probably the hardest, most difficult, most onerous job" he had ever done. ( Id. at 49.) He also stated that CBS had an advantage because he was "sitting up at four or five in the morning disturbed about [his own] papers" when he should have been spending that time opposing CBS's motion to enjoin Scholz. ( Id. at 50.)
In spite of these difficulties, Engel continued to represent Scholz. ( Id. at 43-44.) Ultimately, he achieved what he characterized as a "very, very favorable result" for Scholz, although he qualified that statement by saying, "it took God knows how many years? Seven years of litigation. Maybe it wasn't worth it. I don't know." ( Id. at 53.) Because of this favorable result, Engel was unable to say whether he was ever forced to disclose information which damaged Scholz's case. ( Id. at 53.) Engel testified only that the underlying action damaged Scholz in the sense that "it lessened his chances, made it more difficult to achieve that result." ( Id. at 53.) Engel's testimony as a whole is evidence that his representation by Scholz was made more difficult by the underlying action and that part of the increased difficulty was due to a potential conflict of interest between him and his client. But the testimony also demonstrates that Engel was very successful in his representation and continued to represent his client thereafter.
No court has specified exactly what interference with person or property, other than a provisional remedy, might be sufficient to meet the special injury requirement; very few cases have found the necessary interference in the absence of a provisional remedy. One such case, cited by plaintiff, is Groat v. Town Board of Glenville, 73 A.D.2d 426, 426 N.Y.S.2d 339 (3d Dep't 1980), appeal dismissed, 50 N.Y.2d 928 (1980). In Groat, a police officer had been charged with various counts of misconduct in disciplinary proceedings, suspended without pay, and dismissed. The Third Department held that in that case, there was sufficient interference with person or property for the officer to bring a malicious prosecution action. Id. (citing Fulton v. Ingalls, 165 A.D. 323, 151 N.Y.S. 130 (2d Dep't 1914) (similar facts), aff'd 214 N.Y. 665, 108 N.E. 1094 (1914)). But the disciplinary proceedings in Groat were quasi-criminal in nature, whereas the underlying action in this case was clearly civil. Furthermore, the interference with the officer's person and property in Groat was more serious than the alleged interference with Engel. While the police officer in that case had his livelihood stripped from him, it is undisputed that Engel continued to practice law successfully throughout the pendency of the underlying action and afterward.
Plaintiff also relies on a civil court case that upheld a malicious prosecution action based on a quasi-criminal paternity proceeding. Watson v. City of New York, 57 Misc. 2d 542, 293 N.Y.S.2d 348 (N.Y. Civ. Ct. 1968). To the extent that the action is treated as if it arose from a malicious civil prosecution, it is aberrational in that no other New York court has held that the potential consequences of an action, as opposed to the actual consequences of an action, constitute the interference with person or property required for special injury under New York law.
Engel cites two other cases which might be read as holding that special injury existed in the absence of a provisional remedy. Both are distinguishable, however. In New England Tire & Sales Co., Inc. v. Kelly-Springfield Tire Co., 123 Misc. 954, 207 N.Y.S. 95 (Sup. Ct., Kings Co. 1924), the underlying action appears to have been criminal. (Defs.' Ex. 25.) The case of J.J. Theatres, Inc. v. V.R.O.K. Co., 96 N.Y.S.2d 271 (Sup. Ct., N.Y. Co. 1950), involved the bringing of multiple baseless civil lawsuits. While the opinion is not entirely clear as to the cause of action sustained, the court appears to have upheld a prima facie tort claim, not a malicious prosecution claim. See Chrysler Corp. v. Fedders Corp., 540 F. Supp. 706, 721-22 (S.D.N.Y. 1982) (discussing J.J. Theatres and New England Tire Co.).
The cases cited by Engel and discussed above do not provide clear support for his argument that a civil action which is brought with the malicious intent of disabling or immobilizing an attorney, and which in fact interferes with the attorney's representation of his client, is an adequate basis for a malicious civil prosecution claim. However, it is unnecessary for me to decide whether there are circumstances in which such purposeful interference can create special injury. It may be, for example, that an attorney who is disqualified from representing his client as a result of a malicious and unfounded lawsuit against both of them suffers the requisite special injury. Such a disqualification may be an interference with person or property sufficiently akin to a provisional remedy to justify a malicious civil prosecution action. But in this case, Engel was not disqualified as Scholz's attorney. In fact, Engel continued to represent Scholz effectively throughout the underlying action and the related suit, and ultimately achieved a very favorable result for his client. Under such circumstances, Engel's testimony that the defendants interfered with his representation of Scholz and created an advantage for CBS in the litigation is insufficient to support a finding of the essential element of special injury. Those facts do not rise to the level of interference with person or property which is akin to a provisional remedy as required by New York law.
2. Prima Facie Tort
Engel also requests leave "to move to reconsider and reverse the dismissal of his cause of action based on prima facie tort." (Pl.'s Mem. at 18 n.9.) Under New York law, an action for prima facie tort cannot be used to avoid the stringent requirements of a malicious prosecution claim. Curiano v. Suozzi, 63 N.Y.2d 113, 118-19, 480 N.Y.S.2d 466, 470, 469 N.E.2d 1324 (1984). The dismissed prima facie tort claim was based on the same conduct as the malicious prosecution claim. Accordingly, Engel's request is denied.
For the foregoing reasons, defendants' motion for summary judgment on the sole remaining claim of malicious prosecution is granted, and the action is dismissed.
Dated: New York, New York
April 24, 1997
MIRIAM GOLDMAN CEDARBAUM
United States District Judge