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May 22, 2002


The opinion of the court was delivered by: David G. Larimer, Chief Judge.


This diversity action has its genesis in a property dispute that is currently the subject of a civil action in Yates Supreme Court, New York ("state court action"). The state court action involves disputes concerning two contiguous pieces of land located on Keuka Lake in Yates County, New York.

Plaintiff's two-count federal complaint alleges state-law claims of tortious interference with prospective business relations and abuse of civil process. Plaintiff, Constance J. Roeder ("Roeder"), and defendants, Joseph and Margaret Rogers ("the Rogers defendants"); the law firm of LoPinto, Schlather, Solomon & Salk; Raymond Schlather; and Daniel Hoffman (collectively "the LoPinto defendants"), are all involved in the state court action. Plaintiff and the Rogers are litigants, while the LoPinto defendants acted as counsel for the Rogers. Currently pending before this Court are the Rogers defendants' motion to dismiss under abstention principles or for summary judgment*fn1, and the LoPinto defendants' motions for summary judgment and sanctions pursuant to Fed.R.Civ.P. 11. Plaintiff opposes the motions and cross-moves pursuant to Fed.R.Civ.P. 56(f) for further discovery.


In 1993, the Rogers commenced the state court action — a trespass and quiet-title action — against Roeder's husband, John Nicolo ("Nicolo"), and Nicolo's corporation, South Slope Holding Corporation, who were former owners of the property during some of the relevant periods. Roeder was later added as a defendant when the property was conveyed to her.*fn2 The property involved abuts property owned by the Rogers on Keuka Lake and the dispute revolves in part around a large boathouse constructed by Nicolo in 1991. The Rogers contend that the boathouse interferes with their littoral and riparian property rights. In addition, both the Rogers and plaintiff are claiming ownership of the same portion of the foreshore near their adjoining property lines. See Docket No. 13, Ex. 4, p. 2, 7.

The LoPinto defendants began representing the Rogers in the state court action in February of 2000, many years after the action was filed. In an apparent attempt to bolster the Rogers's claims, the LoPinto defendants negotiated two quitclaim deeds, executed in September and November 2000, from the remaining heirs of Helen Bentley Westlake ("Westlake"), a previous owner of the Rogers's property. Westlake had conveyed the property to the Rogers's predecessor in title, Charles Eckel.

In the state court action, Roeder claims that the transfer from Westlake to Charles Eckel did not include any area beyond the high water mark of the property. Such an omission is arguably important, because a portion of the property in dispute in the state court action is between the high and low water marks of the two properties. The quitclaim deeds conveyed the grantors' interests, to the extent that any interests remained, to the Rogers. In this federal action, Roeder claims that the negotiation for and recording of the two quitclaim deeds was an abuse of civil process and constituted tortious interference with prospective business relations that Roeder had with Todd Tickner ("Tickner"), a potential purchaser of Roeder's property.

On November 24, 2000, Roeder sold a portion of her property — property that is not the subject of the state court action — to Tickner. There is no dispute that Tickner was aware of the pending state court action. Negotiations between Roeder and Tickner continued, with the parties discussing transferring the remaining property subject to an agreement that Roeder would indemnify Tickner from liability in the state court action.

On August 24, 2001, the LoPinto defendants prepared and recorded a notice of pendency (or lis pendens) against Roeder's property, with reference to the state court action. After learning of the notice, Tickner chose not to purchase the remaining property, even with the inclusion of an indemnification agreement. Plaintiff claims that the notice of pendency tortiously interfered with her prospective contractual relationship with Tickner and constituted an abuse of civil process. Plaintiff has never taken any steps to vacate or challenge the notice of pendency in state court.


A motion for summary judgment shall be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is the moving party's burden to demonstrate "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "When the moving party has carried its burden," the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[T]he non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 587 (emphasis in original) (quoting Fed.R.Civ.P. 56(e)). Based on these well established principles, it is clear that summary judgment in favor of defendants is appropriate and that the complaint must be dismissed in all respects.

A. Tortious Interference

Plaintiff alleges in her complaint that the defendants interfered with the sale of the remaining parcel of land by "falsely stating that plaintiff does not own the Premises, fraudulently obtaining and illegally filing [sic] quit-claim deed,*fn3 [and] improperly filing a notice of lis pendens. . . ." Complaint, ¶ 28.*fn4 In support of her claim, plaintiff offers an affidavit signed by Tickner outlining his reasons for declining plaintiff's offer of sale. In his affidavit, Tickner makes no reference to the quitclaim deeds or to any allegations attributed to defendants that plaintiff did not own the premises. Instead, Tickner claims that when notified of the notice of pendency, through an August 27, 2001 letter addressed to his attorney, he elected not to purchase the property, even with an indemnification agreement. Tickner Aff., ¶ 13. Since, according to Tickner, the notice of pendency was the sole factor leading to his decision, there is no evidence to support plaintiff's claims that statements allegedly made by the defendants concerning the ownership of Roeder's property or the quitclaim deeds somehow caused Tickner to refuse to purchase the property. Therefore, the Court will address only the remaining contention — that is, whether the filing of the notice of pendency constituted tortious interference with prospective contractual relations.

To state a prima facie case for tortious interference with a prospective contract under New York law, plaintiff must show: "(1) business relations with a third party; (2) the defendant's interference with those business relations; (3) that the defendant acted with the sole purpose of harming the plaintiff or used dishonest, unfair, or improper means; and (4) injury to the business relationship." Astor Holdings, Inc. v. Roski, 2002 WL 72936, at *19 (S.D.N.Y. Jan. 17, 2002).

Essentially, in order to establish a claim for tortious interference, "plaintiff must demonstrate that the defendant[s'] interference with [her] prospective business relations was accomplished by `wrongful means' or that defendant acted for the sole purpose of harming the plaintiff. `Wrongful means' includes physical violence, fraud, misrepresentation, civil suits, criminal prosecutions and some degree of economic pressure, but more than simple persuasion is required." Snyder v. Sony Music Entertainment, Inc., 684 N.Y.S.2d 235, 239 (1st Dep't 1999) (citations omitted); see also Hannex Corp. v. GMI, Inc., 140 F.3d 194, 206 (2d Cir. 1998).

Thus, the Court must determine, drawing all inferences in favor of plaintiff, if the notice of pendency can constitute wrongful means or could demonstrate that defendants acted for the sole purpose of harming plaintiff. Crucial to this inquiry is whether the notice was, in fact, improperly filed.

A properly filed notice of pendency "puts the world on notice of the plaintiff's potential rights in the action and thereby warns all comers that if they then buy the realty or lend on the strength of it or otherwise rely on the defendant's right, they do so subject to whatever the action may establish as the plaintiff's right." In the Matter of Sakow, 97 N.Y.2d 436, 2002 WL 433035, at *2 (N.Y. Mar. 21, 2002) (quotations omitted). Because a notice of pendency can affect the alienability of property, this device, by statute, has a narrow application. 5303 Realty Corp. v. O & Y Equity Corp., 64 N.Y.2d 313, 315-316 (N.Y. 1984). Specifically, "a notice of pendency may be filed in any action . . . in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property. . . ." N.Y.C.P.L.R. § 6501.*fn5 Although not utilized at all in this case by Roeder, the statute does provide a procedure to challenge the filing of a notice of pendency and to obtain its cancellation. The notice of pendency may be challenged pursuant to N.Y.C.P.L.R. § 6514.*fn6 A court's review of the notice is limited, but "[i]f the procedures prescribed in article 65 have not been followed or if the action has not been commenced or prosecuted in good faith, the notice must be canceled in the first instance, and it may be in the second." 5303 Realty Corp., 64 N.Y.2d at 320.

Here plaintiff does not dispute the procedures by which the notice was filed. Instead, plaintiff argues that the state court action only seeks the removal of the boathouse, suggesting that the underlying dispute would not "affect the title to, or the possession, use or enjoyment of, real property," N.Y.C.P.L.R. § 6501. Such a contention is frivolous. The proceedings in the state court action clearly involve a dispute that affects not only title to a portion of the property but also the use or enjoyment of the premises in question. The state court judge handling the proceedings, Justice Dennis Bender, described the Rogers's complaint as alleging not only an interference with their littoral rights, but also as seeking "a declaration that they own the `parcel 4' foreshore, under alternative theories of ownership by title, adverse possession and/or prescriptive easement." Docket No. 13, Ex. 4, p. 2. Thus, the state court action involves more than just the removal of the boathouse.

The Rogers also seek to establish title to a portion of real property.

I conclude that the properly filed notice of pendency did not constitute "wrongful" conduct which would subject defendants to liability for tortious interference. It is clear to this Court that the state court action falls within the scope of disputes delineated in section 6501, and, thus, the notice of pendency was properly filed. Not only was the filing appropriate, but I believe that a conscientious attorney representing a client in a hotly contested property dispute would be remiss if he or she failed to file a notice of pendency to protect the client's interest. The record clearly does not support Roeder's claim that the notice of pendency was filed for the sole purpose of harming her or her relationship with Tickner. There was a legitimate purpose in filing the notice of pendency because it provided notice to the world of the pending litigation and the fact that it may affect title to, and use and enjoyment of, the property described. Of course, the filing of the notice of pendency conveyed no new information to Tickner, who was ...

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