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August 23, 2002


The opinion of the court was delivered by: Block, District Judge.


In Jacques v. DiMarzio, 200 F. Supp.2d 151, 162 (E.D.N.Y. 2002), the Court denied defendant's motion for summary judgment on plaintiffs federal claim under the Americans with Disabilities Act ("ADA"), holding that there was a genuine issue of material fact as to whether the plaintiff was perceived as disabled from interacting with others. See id. at 161. In doing so, the Court ruled that "the ability to `interact with others' is a major life activity" under the ADA. Id. at 160. The Court also denied summary judgment as to the plaintiffs state whistle blower claim under New York Labor Law § 215, holding that "there exists an issue of material fact as to whether [the plaintiff's] labor law complaints were a motivating factor in her discharge." Id. at 162.*fn1 In addition, the Court sua sponte questioned the viability of defendant's counterclaim, characterizing it as an apparent "naked form of retaliation against Jacques, a vulnerable plaintiff who suffers from a significant mental impairment, for filing her lawsuit." Id. The Court afforded defendant's counsel "the opportunity to submit legal authority and evidence to justify [the] counterclaim, if it can, and to explain why Rule 11 sanctions should not be imposed." Id.; see Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 141 n. 2 (2d Cir. 2002) ("A district court can award sanctions absent a motion from a party. But if a district court determines that sanctions are appropriate, the court must allow the party threatened with sanctions to respond."). Defendant's counsel has availed himself of that opportunity; he has submitted a memorandum in which he argues that the counterclaim pled "colorable claims sounding in abuse of process, malicious prosecution and prima facie tort under New York Law." Def.'s Mem. at 2. He argues, in any event, that sanctions are not appropriate because:

1) the counterclaims*fn2 are not frivolous, 2) do not relate to Jacques' filing this lawsuit, 3) seek damages for Jacques' repeated actions before numerous administrative agencies, 4) there is evidence of improper motive for Jacques' [filing of] those actions, 5) Jacques' actions disrupted DiMarzio's business, 6) DiMarzio reduced the damages it sought on its counterclaim from $500,000 to $50,000, strongly negating any inference that the counterclaim was brought to harass Jacques, 7) the court granted summary judgment on [some of the] claims filed by plaintiff, and 8) in no way has the assertion of the counterclaim delayed this action or caused Jacques to incur any additional costs or expenditures.

Def.'s Mem at 13-14.

Defendant has simultaneously moved, pursuant to 28 U.S.C. § 1292(b), for certification to appeal from that part of the Court's order denying defendant's motion to dismiss the federal ADA claim as a consequence of its ruling that "the ability to `interact with others' is a major life activity." Jacques, 200 F. Supp.2d at 160.

I. The Counterclaim

In its entirety, the counterclaim, in both its original and amended versions, alleges that the plaintiff had filed two administrative claims "for the sole purpose of harassing defendant, interfering with and damaging defendant's business operations, interfering with employee morale, creating employee unrest and impugning defendant's reputation." Answer at ¶ 22; Am. Answer at ¶ 26. One claim was filed with the National Labor Relations Board "accusing defendant of terminating [her] employment as a result of `her engagement in protected and concerted activities[;]'" the other was filed with the Equal Employment Opportunity Commission and the New York State Division of Human Rights based on "discrimination due to an alleged disability in violation of the [ADA]." Answer at ¶¶ 14, 21; Am. Answer at ¶¶ 18, 25. The counterclaim originally sought $500,000 in damages. See Answer at ¶ 23. It was reduced in the amended answer, filed approximately one year later, to $50,000. See Am. Answer at ¶ 27.*fn3

Contrary to defendant's counsel's contention, the counterclaim is utterly devoid of factual allegations to raise a colorable claim under New York law for abuse of process, malicious prosecution or prima facie tort.

"Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective." Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324 (1984). A party "must allege and prove actual or special damages in order to recover." Board of Ed. of Farmingdale Union Free Sch. Dist. v. Farmingdale Classroom Teachers Assoc., Inc., 38 N.Y.2d 397, 405, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975). Special damages are "burdens imposed on [a party] beyond the ordinary burden of defending a law suit." Engel v. CBS, Inc., 145 F.3d 499, 503 (2d Cir. 1998) (internal quotation marks omitted).

"The elements of the tort of malicious prosecution include initiation or continuation of a proceeding despite the lack of probable cause, termination of that proceeding favorable to the party there sued and now aggrieved as plaintiff, and a showing of malice in the pursuit of that underlying proceeding." Honzawa v. Honzawa, 268 A.D.2d 327, 701 N.Y.S.2d 411, 413 (1st Dep't 2000). As with the tort of abuse of process, special damages are required. See id.

A prima facie tort consists of four elements: "(1) intentional infliction of harm, (2) causing special damages, (3) without excuse or justification, (4) by an act or series of acts that would otherwise be lawful." Curiano, 63 N.Y.2d at 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324. New York courts have held that parties "should not be able to plead prima facie tort in the alternative. It should not become a catch all alternative for every cause of action [that] cannot stand on its legs." Id. at 118, 480 N.Y.S.2d 466, 469 N.E.2d 1324 (finding claim for prima facie tort meritless because "by using it, plaintiffs seek to avoid the stringent requirements we have set for traditional torts, such as malicious prosecution [.]").

Defendant's cryptic, generalized, and ill-defined conclusory claim of harassment cannot serve as a substitute for pleading the requisite elements of these causes of actions; accordingly, the counterclaim is dismissed.

II. Rule 11 Sanctions

Rule 11 provides that an attorney makes the following representations each time he or she submits a paper to the court: (1) the paper is not being presented for an improper purpose; (2) the legal claims are warranted under existing law or pursuant to a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law; (3) the allegations and factual contentions have evidentiary support or will likely have ...

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