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.
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.
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.
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.
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