Andrews v. Steinberg

• Decision Date: 23 December 1983
• Citation: Andrews v. Steinberg, 471 N.Y.S.2d 764, 122 Misc.2d 468 (N.Y. Sup. Ct. 1983)
• Parties: Thomas A. ANDREWS, et al., Plaintiff, v. Laura STEINBERG, Defendant.
• Court: New York Supreme Court

Page 764

471 N.Y.S.2d 764

122 Misc.2d 468

Thomas A. ANDREWS, et al., Plaintiff, v. Laura STEINBERG, Defendant.

Supreme Court, Special Term New York County, Part 1.

Dec. 23, 1983.

Thomas A. Andrews, P.C. by Thomas A. Andrews, and Mark Mangold, New York City, for plaintiff.

Kirschenbaum, Shapiro & Marro by Stephen Kirschenbaum, and Marc I. Salis, New York City, for defendant.

MARTIN EVANS, Justice.

This defendant's motion seeks, inter alia, an order directing repleading of plaintiff's third cause of action. It poses an unusual question: Does tort law provide a right of action to an attorney for injury caused by a client's allegedly perjurious testimony in a prior proceeding?

Facts

The individual plaintiff is an attorney in practice in Manhattan. He brings this action on his own behalf and on behalf of his professional corporation. Defendant is a former client. Plaintiff represented defendant in a variety of matters for several years. ¹ During the course of a proceeding arising from a matrimonial action, brought by defendant against her husband, defendant retained another attorney to replace plaintiff as counsel. During the course of plaintiff's representation of defendant, plaintiff brought on a motion based on an affidavit signed by the defendant. After plaintiff's replacement as counsel, defendant testified at a traverse hearing that plaintiff had created for her a false affidavit which was typed over her signature on a blank sheet of paper which, she claimed, plaintiff had previously requested her to sign. It is this testimony which plaintiff claims was false. As a result of such testimony, plaintiff was the subject of a complaint made to the Departmental Disciplinary Committee. The Committee later determined that there was no basis on which to proceed against plaintiff.

The third cause of action, here at issue, plaintiff claims that defendant "wilfully, intentionally and maliciously" gave false testimony about plaintiff thereby "wilfully" injuring him. See amended verified complaint, para. 30. He seeks damages for having been forced to defend himself against the complaint, for interference with his work, and for impeding his ability to obtain new work and clients.

I.

The sort of injury claimed by plaintiff does not easily fall into any of the customarily accepted conceptual pigeonholes of tort law. Indeed, no effective, generally recognized civil remedy for perjury currently exists. See Prosser on Torts (4th Ed) § 114. Difficulty in classifying a pleading is not an acceptable excuse for declining to adjudicate the issues it raises. Semantics alone should not determine whether a wrong can be redressed. Moreover, under modern pleading practice, a complaint should be deemed sufficient if it sets forth an adequate factual basis for determining that some legal relief can be validly sought on one or more permissible theories. Clevenger v. Baker Voorhis & Co., 8 N.Y.2d 187, 203 N.Y.S.2d 812, 168 N.E.2d 643; See Dioguardi v. Durning, 139 F.2d 774 (2nd Cir.1944). Thus where, as here, the allegations might conceivably indicate the existence of multiple theories of recovery (e.g., defamation, injurious falsehood, prima facie tort), the pleading's failure to satisfy the technical requirements for stating one theory (e.g., defamation, see CPLR 3016) is not necessarily fatal.

II

Although no single category of tort law directly covers the specific wrong committed, it is settled law in New York that harm intentionally done is actionable if the conduct is unjustified. More specifically, the theories of prima facie tort and injurious falsehood have in the past encompassed conduct similar to that alleged here.

The concept of prima facie tort essentially derives from an action on the case. It is intended to provide a remedy for tort injuries that do not conveniently fit into any other category. See gen. 16 A.L.R.3d 1191. Indeed, its simple translation from Latin and Law French, a "wrong at first glance", is probably its most practical definition. The law has long regarded malicious injury without excuse as an obvious societal wrong. See Mogul Steamship Co. v. McGregor, 23 Q.B.D. 598 (1892); 3 Blackstone Comm. Ch. 8. Mr. Justice Holmes acknowledged, "It has been considered that "Prima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law ... requires a justification if the defendant is to escape." Aikens v. Wisconsin, 195 U.S. 194, 25 S.Ct. 3, 49 L.Ed. 154; See 52 Col.L.Rev. 503; 16 A.L.R.3d 1191.

Prima facie tort has since become a more rigid, structured doctrine, necessitating the satisfaction of several elements before a cause of action can be proven. Currently, a cause of action in prima facie tort requires, in addition to malice and the pleading of special damages, an infliction of intentional harm, without excuse or justification, by an otherwise legal act. Although perjury by itself does not constitute an "otherwise legal act" it is the malice, the intent to cause injury, without excuse or justification, which turns otherwise legitimate conduct into a tortious act. See Note, 32 St. John's L.Rev. 282, 284. Thus, even a lawful act, done with injurious or malicious intent, can be actionable. Al Raschid v. News Syndicate Co., 265 N.Y. 1, 191 N.E. 713. As the court pointed out in Beardsley v. Kilmer, 236 N.Y. 80, 140 N.E. 203, "the genesis which will make a lawful act unlawful must be a malicious one unmixed with any other and exclusively directed to the injury and damage of another."

For example, in Musso v. Miller, 265 A.D. 57, 38 N.Y.S.2d 51, where nonslanderous statements were maliciously made regarding plaintiff's fitness to be a minister, the court held that an action on the case, as distinguished from one for slander, will lie for malicious acts or words designed to produce damage. See also Sands v. Weingrad, 99 Misc.2d 598, 416 N.Y.S.2d 969 (malicious publication of personal income tax returns found actionable).

Examining the types of conduct most relevant to the injury sustained here, those which have been found prima facie tortious include false words or actions intended to directly cause economic damage and those designed to cause injury to reputation. In fact, it had been a well established common law principle that an action on the case will lie for maliciously giving false information. As the 1892 English decision of Ratcliffe v. Evans, 2 QB 524, 527, states:

That an action will lie for written or oral falsehoods, not actionable per se nor even defamatory where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law. Such an action is not one of libel or of slander, but an action on the case for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title.

Furthermore, in Dubourcq v. Brouwer, 124 N.Y.S.2d 61 (N.Y.Sup.), aff'd 282 A.D. 861, 124 N.Y.S.2d 842, aff'd 283 App.Div. 942, 131 N.Y.S.2d 300, the court also recognized that an action will lie for statements maliciously circulated to harm plaintiff in his profession as long as the false statements were not actionable as libel or slander, either because they were not defamatory or for other reasons. See Sands v. Weingrad, 99 Misc.2d 598, 416 N.Y.S.2d 969 (a complaint, which in broad conclusory terms alleges libel, slander, or false words causing special damages, when liberally construed may also encompass a case for prima facie tort).

Consequently, the publication of false information has often been found actionable as prima facie tort rather than as defamation. For example, a plaintiff was able to seek damages, under prima facie tort doctrine, against his former employer for publishing to prospective employers false and malicious reports which harmed his reputation in his occupation. Sheppard v. Coopers', Inc., 14 Misc.2d 180, 181 N.Y.S.2d 709, app dismissed 7 A.D.2d 971, 186 N.Y.S.2d 214; See also, Ledwith v. International Paper Co., 64 N.Y.S.2d 810 (N.Y.Sup.1946), aff'd 271 A.D. 864, 66 N.Y.S.2d 625, app den 271 A.D. 916, 67 N.Y.S.2d 688. Moreover, false statements circulated to customers disparaging plaintiff's business are also actionable under prima facie tort. Purofied Down Products Corp. v. National Assoc. of Bedding Mfrs., 97 N.Y.S.2d 683 (N.Y.Sup.1950) (misleading reports as to quality of product); Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 70 N.E.2d 401 (misrepresentation of popularity of songs); LoBianco v. Scott Publications, 82 N.Y.S.2d 248 (N.Y.Supp.1948) (language accusing plaintiff of irregular business dealings). See Rochester Brewing Co. Inc. v. Certo Bottling Works, Inc., 192 Misc. 629, 80 N.Y.S.2d 925 (false statement as to business relationship between manufacturer and distributor leading to loss of sales). See also, Morrison v. National Broadcasting Company, 24 A.D.2d 284, 266 N.Y.S.2d 406, rev'd on other grounds, 19 N.Y.2d 453, 280 N.Y.S.2d 641, 227 N.E.2d 572 (university professor held to have a valid cause of action when subjected to public scorn after having been induced to participate as a contestant on a quiz show with prearranged results).

Moreover, plaintiffs have been found to have valid claims when they have been subjected to investigation as a result of false information maliciously given by the defendant. Thus, in Gale v. Ryan, 263 A.D. 76, 31 N.Y.S.2d 732, plaintiff was wrongfully subjected to an investigation for failure to file income tax returns because defendant employer made fraudulent statements concerning wages earned and received by plaintiff. In Brandt v. Winchell, 283 A.D. 338, 127 N.Y.S.2d 865, app. den. 283 A.D. 794, 128 N.Y.S.2d 295, defendant a columnist, instigated investigations by law enforcement agencies and criminal proceedings against plaintiff, and registered false complaints with governmental departments leading to the revocation of plainti...