Here plaintiff alleges that additional discovery is necessary "to
challenge, through deposition examination, the LoPinto defendants [sic]
conclusory statement that their conduct was not wrongful or was done
without malice." Hourihan Aff., Docket No. 35, ¶ 24.Yet a fishing
expedition for evidence of "malice," even if successful, could not rescue
plaintiff's claims. Regardless of any malevolent intent, the notice of
pendency was properly filed. Even if defendants' actions were spurred in
part by impure hearts, the legitimate purpose of filing the notice
— to protect the Rogers's state law claims in the event of a
conveyance — directs a finding that the notice of pendency did not
constitute tortious interference.
Furthermore, additional discovery could not affect the Court's ruling
on the abuse of process claim. Bad intent alone cannot support such an
action. Brown, 525 N.Y.S.2d at 980. In addition, plaintiff has advanced
no evidence of an attempt to misuse the notice of pendency or the
quitclaim deeds in order to compel performance or forbearance of some
act. Surely if defendants had used the notice or deeds to force a below
market sale upon plaintiff either she or Nicolo would have some knowledge
of the attempted coercion. Yet both plaintiff's and Nicolo's affidavits
are silent on this topic.
Because there are no discoverable facts that reasonably could alter the
Court's findings here, plaintiff's request is denied. See Hudson River
Sloop Clearwater, Inc. v. Department of Navy, 891 F.2d 414, 422 (2d Cir.
D. Rogers Defendants' Motion for Abstention
The Rogers defendants argue that the issues here can and should be
resolved as part of the pending action in state court. Thus, they ask
this Court to abstain from exercising its jurisdiction here. I deny the
request, although it is academic and moot in view of this Court's
decision, to dismiss the complaint.
I can certainly understand why defendants have made this request. There
seems to be little reason to be in federal court. There are no federal
claims advanced here, and the disputes revolve around an existing state
court action. The New York State Court could certainly have handled all
these disputes in one proceeding or in a series of proceedings.
Nevertheless, the wisdom, efficiency and practicality of plaintiff's
determination to initiate a new, federal lawsuit is not controlling on
the issue of abstention.
Pursuant to the Colorado River doctrine, a "court may abstain in order
to conserve federal judicial resources only in `exceptional
circumstances,' where the resolution of existing concurrent state-court
litigation could result in `comprehensive disposition of litigation.'"
Woodford v. Community Action Agency of Greene County, Inc., 239 F.3d 517,
522 (2d Cir. 2001) (citing Colorado River Water Conservation Dist. v.
U.S., 424 U.S. 800, 813, 817 (1976)). In considering the factors to be
weighed by this Court in evaluating the applicability of this doctrine, I
find that abstention is not appropriate here. See id. at 522 (listing
First, although the state court action does involve a res over which
the state court has assumed jurisdiction, this Court need not exercise
jurisdiction over this property in order to resolve the dispute pending
here. Second, this forum has been mutually convenient for all parties,
and had the case proceeded to discovery, any problems with duplication
could have been resolved through careful case management. Third, while
this action and the
state court action share many facts in common, this
Court's exercise of jurisdiction will not result in piecemeal
litigation. Fourth, although the state court proceedings have been
pending for some time, the claims raised by plaintiff here have not been
addressed in that action. Finally, although none of plaintiff's claims
here involve federal law, and the state procedures would have been
adequate to protect plaintiff's rights, these factors alone do not
require abstention. The Rogers' defendants motion for abstention is
E. The LoPinto Defendants' Motion for Rule 11 Sanctions
The LoPinto defendants have asked this Court to impose sanctions
pursuant to Fed.R.Civ.P. 11, arguing in part that plaintiff's complaint
is not warranted by existing law or by any non-frivolous argument to
extend the existing law. Given the utter lack of legal support for
plaintiff's claims here, the LoPinto defendants' motion is granted.
Rule 11(b)(2) provides that an attorney presenting a pleading to the
is certifying that to the best of the person's
knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances, . . . 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.
Rule 11(b)(2) "establishes an objective standard, intended to eliminate
any `empty-head pure-heart' justification for patently frivolous
arguments." Margo v. Weiss, 213 F.3d 55, 64 (2d Cir. 2000) (quoting
Fed.R.Civ.P. 11 advisory committee note to 1993 amendments). Thus, an
attorney's conduct triggers sanctions when it is objectively
unreasonable. Id. at 65. "Sanctions should only be imposed if `it is
patently clear that a claim has absolutely no chance of success,' and all
doubts should be resolved in favor of the signing attorney." K.M.B.
Warehouse Distributors, Inc. v. Walker Mfg. Co., 61 F.3d 123, 131 (2d
Cir. 1995) (quoting Rodick v. City of Schenectady, 1 F.3d 1341, 1350 (2d
In opposing the LoPinto defendants' motion, plaintiff does not argue
that the complaint can be justified by an argument to extend existing
law. Instead, plaintiff argues that both the tortious interference action
and the abuse of process action are warranted by current New York law. As
discussed at length earlier in this decision, New York law provides no
foundation for plaintiff's claims. More importantly, it is plainly clear
that plaintiff's claims on their face stood no chance of success.
1. The Tortious Interference Claim
The facts alleged in the complaint and the evidence which existed at
the time the complaint was filed simply cannot support a claim for
tortious interference. Although plaintiff claims that the notice of
pendency filed by defendants was overly broad, it is clear that this
notice was properly filed. Even a cursory inspection of the Fourth
Amended Complaint filed in the state court action reveals a dispute over
the ownership of a portion of plaintiff's property. Moreover, the
language in the notice tracks almost verbatim the description of the
disputed property in that complaint. It is simply impossible for
plaintiff to demonstrate that this notice constituted the wrongful means
necessary to prosecute an action for tortious interference.
Moreover, the tortious interference alleged by plaintiff here —
an interference with the sale of her property — is the natural
result of a properly filed notice of
pendency. Brown, 525 N.Y.S.2d at 980; Andesco, 530 N.Y.S.2d at 115.
2. The Abuse of Process Claim
Similarly, the decision to proceed with the abuse of process claim was
objectively unreasonable. Neither plaintiff nor Nicolo was able to
articulate any attempt to use the notice of pendency for an improper
purpose. Even if defendants filed the notice to satisfy some secondary
"malevolent impulse," such an impulse, without more, cannot give rise to
an abuse of process claim. Borwn, 525 N.Y.S.2d at 980; Raved, 481
N.Y.S.2d at 171-172.
Significantly, in arguing that the notice somehow constituted an abuse
of process, plaintiff essentially admits that a dispute concerning the
Rogers and plaintiff's property line is set forth in the Fourth Amended
The bad faith of the LoPinto Defendants in filing the
lis pendens is highlighted by the fact that the three
prior complaints only referred to the Rogers' deed as
the basis for their claim of littoral water rights.
Yet in the fourth amended compliant, the Rogers
purport to claim ownership to the "Parcel 4 foreshore"
based upon the above-noted fictional properly line.
Plaintiff's Memorandum in Opposition, Docket No. 23, p. 8. The fact that
the first three complaints in the state court action apparently did not
reference a disputed property line is irrelevant. The Fourth Amended
Complaint, the complaint on which the notice of pendency was based,
states, as plaintiff admits, a claim against plaintiff's property. Thus,
plaintiff cannot demonstrate that the notice was diverted from its lawful
Plaintiff correctly suggests that the filing of a notice of pendency
can, in certain circumstances, give rise to an abuse of process claim.
However, Felske v. Bernstein, 570 N.Y.S.2d 331 (2d Dep't 1991), the
principal case on which plaintiff relies, merely illustrates that the
notice must be diverted from its proper purpose in order to sustain such
an action. In Felske, the court found that the underlying action, one for
specific performance, would not affect the title to, possession, use or
enjoyment of real property, thus a claim for abuse of process could be
sustained. Id. at 333. Unlike Felske, plaintiff here simply cannot
demonstrate that the notice was so diverted.
In addition, plaintiff offers no authority to support the allegation
that the quitclaim deeds could constitute an abuse of process. Although
plaintiff claims that these deeds improperly "transferred" portions of
plaintiff's property to the Rogers, such an argument distorts beyond
recognition the true effect of a quitclaim deed — to transfer only
the interest possessed by the grantor at the time of signing.
The issuance of sanctions is not a course undertaken lightly by this
Court. In evaluating the arguments and evidence before me, I have given
the signing attorney every benefit of the doubt here. Unfortunately,
plaintiff's attorney has chosen to advance through the filling of the
complaint in this action two claims that unquestionably had no chance of
success. I find that the decision to file this complaint was objectively
unreasonable, and, as such, I hereby sanction plaintiff's attorneys
pursuant to Rule 11(b)(2).
The LoPinto defendants have requested sanctions in the amount of
$8,800, the cost of legal services and expenses incurred by the LoPinto
defendants in reviewing and defending against this complaint. Although
plaintiff contests the appropriateness of sanctions in general, plaintiff
has not disputed the reasonableness of these fees. I therefore award
sanctions against plaintiff's
attorneys in the amount of $8,800. I find
this amount to be "sufficient to deter repetition of such conduct."
For the foregoing reasons, the Rogers defendants'*fn7 motion for
summary judgment (Docket No. 17) and the LoPinto defendants' motion for
summary judgment (Docket No. 13) are hereby granted, and the complaint is
dismissed. The Rogers defendants' motion for abstention is denied (Docket
No. 17), as is plaintiff's cross motion for additional discovery (Docket
No. 30) pursuant to Fed.R.Civ.P. 56(f). The LoPinto defendants' motion
for Rule 11 sanctions (Docket No. 22) is granted and plaintiff's attorneys
are directed to pay to defendants' attorneys the sum of $8,800 to
reimburse them for defending against the action, within thirty days.