Board of Ed. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Ass'n, Inc., Local 1889 AFT AFL-CIO

• Decision Date: 29 December 1975
• Docket Number: AFL--CIO
• Parties: , 343 N.E.2d 278, 91 L.R.R.M. (BNA) 3058, 80 Lab.Cas. P 54,018 BOARD OF EDUCATION OF FARMINGDALE UNION FREE SCHOOL DISTRICT, Respondent, v. FARMINGDALE CLASSROOM TEACHERS ASSOCIATION, INC., LOCAL 1889, AFT, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 635

380 N.Y.S.2d 635

38 N.Y.2d 397, 343 N.E.2d 278, 91

L.R.R.M. (BNA) 3058,

80 Lab.Cas. P 54,018

BOARD OF EDUCATION OF FARMINGDALE UNION FREE SCHOOL

DISTRICT, Respondent, v. FARMINGDALE CLASSROOM TEACHERS ASSOCIATION, INC., LOCAL

1889, AFT AFL--CIO, et al., Appellants.

Court of Appeals of New York.

Dec. 29, 1975.

Stanley A. Immerman and Irving Perlman, Brooklyn, for appellants.

Kendrick C. Smith, Farmingdale, for respondent.

WACHTLER, Judge.

This appeal, arising in the context of an apparently bitter dispute between a school district and a teachers' association, concerns the seldom considered tort of abuse of process. The school district contends that the association and its attorney are liable for abusing legal process by subpoenaing, with the intent to harass and to injure, 87 teachers and refusing to stagger their appearances. As a result the school district was compelled to hire substitutes in order to avert a total shutdown. The issue on appeal is whether the complaint states a cause of action.

The controversy began in March, 1972 when a number of teachers employed by the district were absent from their classes on two successive days. The school district considered this illegal and the teachers' association was charged with violating the so-called Taylor law (Civil Service Law, § 210, subd. 1) by the Public Employees Relations Board (PERB). The association vehemently denied having engaged in or condoned a strike and the matter was scheduled for a hearing to be held on October 5, 6, 10 and 11.

The complaint contains the following version of the ensuing events. Sometime between September 5, 1972 and October 5, 1972, the attorney for the association prepared and issued judicial subpoenas duces tecum to 87 teachers in order to compel their attendance as witnesses on October 5. The school district learned of these subpoenas on or about October 3, 1972 when the individual teachers requested approved absences from teaching duties in accordance with the collective bargaining agreement. The complaint further alleges that the district's prompt oral request that the majority of teachers be excused from attendance at the initial hearing date was refused by the defendant. Indeed, the defendant refused even to grant the request to stagger the appearances. Consequently all 87 teachers attended the hearing and 77 substitute teachers were hired to replace them. Based on these allegations, the school district asserts three causes of action.

The first alleges an abuse of process in that the defendants wrongfully and maliciously and with intent to injure and harass the plaintiff issued 87 subpoenas with knowledge that all the teachers could not have possibly testified on the initial hearing date. As damages for this cause of action plaintiff seeks the amount expended to engage substitute teachers and an amount representing the aggregate salary of the subpoenaed teachers. The second cause of action reiterates the allegations of the first and prays for punitive damages; while the third alleges defendants' conduct constituted a prima facie tort. Defendants moved to dismiss primarily for failure to state a cause of action (CPLR 3211, subd. (a), par. 7). Special Term denied this motion and the Appellate Division affirmed with one Justice dissenting.

In its broadest sense, abuse of process may be defined as the misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process. It has been observed that this tort is an obscure one (Italian Star Line v. United States Shipping Bd. Emergency Fleet Corp., 2 Cir., 53 F.2d 359, 361) one which is rarely brought to the attention of the courts (Dishaw v. Wadleigh, 15 App.Div. 205, 209, 44 N.Y.S. 207, 208) and the vital elements of which are not clearly defined (see, generally, Prosser, Torts (4th ed.), § 121; 1 Harper & James, Torts, § 4.9; Harper, Torts, § 272; Restatement, Torts, § 682; Cooley, Torts (4th ed.), § 131).

Abuse of process, i.e., causing process to issue lawfully but to accomplish some unjustified purpose, is frequently confused with malicious prosecution, i.e., maliciously causing process to issue without justification. Although much of the confusion is dispelled on careful analysis, it must be noted that both torts possess the common element of improper purpose in the use of legal process and both were spawned from the action for trespass on the case in the nature of conspiracy. In order to fully understand the nature of abuse of process a consideration of its origin and evolution is necessary.

Like many causes of action, abuse of process is rooted in the interstices of various common-law concepts. It is important to keep in mind that when a party abuses process his tortious conduct injures not only the intended target but offends the spirit of the legal procedure itself. Insofar as it relates to the harm inflicted on the individual, abuse of process finds its origin in the writ of conspiracy. The earliest meaning ascribed to this writ is extremely vague but refers to improper meddling in a legal dispute (Winfield, History of Conspiracy and Abuse of Legal Procedure, ch. I). Eventually this writ came to mean several parties allying to procure a false accusation. However, because of its narrow scope, the writ of conspiracy gradually fell into disuse.

It was superseded by a more malleable form of action; known as an action of case in the nature of conspiracy. This action had a checkered development, due in large measure to the competing policies of seeking to deter false accusers while trying to encourage just ones (compare Jones v. Gwynn, 10 Mod. 214 (12 Anne, BR) with Hercot v. Underhill & Rochley, 2 Bulst. 331 (12 Jac. I)). Throughout this evolution glimpses of two additional concerns are discernible. The use of process to serve the purposes of oppression or injustice was deemed punishable as contempt (see 8 Halsbury's Laws of England (3d ed.), pp. 16--17 and cases there cited) and also as giving rise to an action for injury to reputation (see Winfield, History of Conspiracy and Abuse of Legal Procedure, ch. V, pp. 126--127 and cases there cited).

It was at this juncture that the tort of malicious prosecution emerged as a distinct concept and was fully recognized in the case of Savile v. Roberts (1 Ld.Raym. 374 (10 Will. III, BR)). There, Lord Holt, C.J., noted that while the existence of such an action was not a question of first impression, it was clear that contriving to injure someone by pretense and color of legal process demanded redress because it resulted in a loss of reputation, anxiety and the expenditure of funds in defense. With Savile, malicious prosecution was firmly ensconced in the common law (see, e.g., Brown v. Chapman, 1 W.Bl. 427 (3 Geo. III); Quartz Hill Cons. Gold Min. Co. v. Eyre, 11 Q.B.D. 674; Winfield, Present Law of Abuse of Legal Procedure, ch. VI).

The tort of abuse of process makes its first independent appearance in Grainger v. Hill (4 Bing.N.C. 212). The plaintiff in that case was the owner and captain of a certain vessel who borrowed a sum of money from Hill and others. Although the loan was secured by a mortgage on the vessel, the defendants were desirous of possessing the ship's register. To accomplish this end they sued Grainger in assumpsit and caused a writ of arrest to issue. Thereafter Grainger who was wounded and bedridden, was threatened with incarceration unless he delivered the register to defendants. Rather than go to jail he succumbed and relinquished the register. Grainger then sued defendants for procuring the writ of arrest (p. 212) 'wrongfully, illegally, and maliciously contriving to injure, harass, and distress the plaintiff, and to compel (him) * * * to give up and relinquish to them * * * a certain register' and certificate of registry to his ship. The court affirmed a judgment in favor of plaintiff. One Judge noted that this was a case of first impression which involved a new species of injury and that a new action must be fashioned according to the particular circumstances. The court held that this action was not for maliciously putting process in force (malicious prosecution) but rather was an action for maliciously abusing the process of the court. It was further held that since process was used to effect an object not within the scope of the process, it was immaterial whether the original suit had been terminated or whether it was founded on probable cause. The employment of process to extort property was, of itself, a sufficient cause of action. These basic principles have been carried forward into modern times and are recognized in this country (Addison, Torts (6th ed., 1887), ch. I, § 1, p. 33).

In New York, actions based on abuse of process, that is, the tortiousness of using legal process to attain some collateral objective can be found in the earliest reported cases (Holley v. Mix, 3 Wend. 350; Brown v. Feeter, 7 Wend. 301; Baldwin v. Weed, 17 Wend. 224; Rogers v. Brewster, 5 Johns. 125; Bebinger v. Sweet, 6 Hun 478; Hazard v. Harding, 63 How.Prac. 326). One early appellate case warrants discussion as a classic example of abuse of process. Dishaw v. Wadleigh, 15 App.Div. 205, 44 N.Y.S. 207, Supra involved an attorney who assigned claims to an associate living in another part of the State for the purpose of having the associate institute proceedings. The idea behind it was to make it easier to pay the claim than to submit to the discomfort and expense of attending a distant court. Ruling in favor of plaintiff, the court rejected the argument that the procedure utilized was strictly legal. The court expressed the view that such trickery and cunning was 'degrading to an honorable profession, and well calculated to bring the administration of justice into reproach and contempt' (p. 209, 44 N.Y.S. p. 208; see, also, Foy v. Barry, 87 App.Div. 291, 84 N.Y.S. 335).

Abuse of process was first considered by our court in Dean v. Kochendorfer, ...