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

• Decision Date: 18 November 1974
• Docket Number: AFL-CIO
• Citation: 46 A.D.2d 794,360 N.Y.S.2d 922
• Parties: , 90 L.R.R.M. (BNA) 2359, 75 Lab.Cas. P 53,510 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 Supreme Court — Appellate Division

Page 922

360 N.Y.S.2d 922

46 A.D.2d 794, 90 L.R.R.M. (BNA) 2359,

75 Lab.Cas. P 53,510

BOARD OF EDUCATION OF FARMINGDALE UNION FREE SCHOOL DISTRICT, Respondent, v. FARMINGDALE CLASSROOM TEACHERS ASSOCIATION, INC., LOCAL 1889, AFT AFL-CIO, et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Nov. 18, 1974.

Immerman & Perlman, Baldwin (Stanley A. Immerman, Baldwin, of counsel), for appellants.

Kendrick C. Smith, Farmingdale, for respondent.

Before GULOTTA, P.J., and HOPKINS, COHALAN, SHAPIRO and MUNDER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for alleged abuse of process and prima facie tort, defendants appeal from an order of the Supreme Court, Nassau County, dated January 30, 1974, which denied their motion to dismiss the complaint.

Order affirmed, without costs.

Since the motion was addressed to the complaint as a whole, and the first two causes of action are valid pleadings, the motion was properly denied in its entirety even though the third cause of action was legally insufficient (De Maria v. Josephs, 41 A.D.2d 655, 340 N.Y.S.2d 707; Griefer v. Newman, 22 A.D.2d 696, 253 N.Y.S.2d 791).

][2,3] Where specific acts, recognized as tortious in the law, are asserted, the remedies lie only in the classic categories of tort' (Ruza v. Ruza, 286 App.Div. 767, 769, 146 N.Y.S.2d 808, 810; Metromedia, Inc. v. Mandel, 21 A.D.2d 219, 249 N.Y.S.2d 806). The third cause of action, which is based on an alleged prima facie tort, is insufficient because the basic allegations therein are the grounds for a cause of action in traditional tort. This is particularly so since plaintiff's first cause of action is actually based solely on the traditional tort of abuse of process.

The two elements of abuse of process are, as stated in New York Jurisprudence (vol. 1, Abuse of Process, § 3, p. 57): 1. The existence of an ulterior purpose; and 2. An act in the use of process not proper in the regular prosecution of the proceeding. In Hauser v. Bartow, 273 N.Y. 370, 373, 7 N.E.2d 268, 269, the Court of Appeals defined the tort as follows: "The gist of the action for abuse of process lies in the improper use of process after it is issued. To show that regularly issued process was perverted to the accomplishment of an improper purpose is enough" (citing Dean v. Kochendorfer, 237 N.Y. 384, 390, 143 N.E. 229, 231).

The facts as accurately recited in the dissenting memorandum, indicate the issuance of 87 separate subpoenas, all returnable at the same time and place, despite the request of plaintiff's attorney to stagger the returns so as not to disrupt the orderly operation of the plaintiff's schools.

In Dishaw v. Wadleigh, 15 App.Div. 205, 44 N.Y.S. 207 the defendant, an attorney, had caused a summons and a subpoena to be served in a prior action, against plaintiff as the defendant therein, upon a small alleged debt, but returnable at a court remote from the home of the alleged debtor, instead of a nearer place where it ordinarily would be made returnable, in a transparent attempt to coerce him into paying the claim rather than submit to the inconvenience and expense of attending the court where the venue was thus laid. In reversing the judgment against defendant and granting a new trial upon the ground that improper evidence had been introduced at the trial, the Third Department stated with reference to the subject of abuse of process (p. 211, 44 N.Y.S. p. 210):

'A subpoena is for the purpose of compelling the attendance of a person whom it is desired to use as a witness. Its use for any other purpose is a perversion and abuse of the process of the court.'

At bar, the defendant Association's attorney compelled the attendance of 87 teachers, all of whom (as members of the defendant Association) were quite willing to attend. The result was that plaintiff's teaching staff was so severely crippled in numbers as to require the hiring of some 77 substitutes as temporary replacements, at a considerable cost to plaintiff. By this not too subtle form of coercion defendants put plaintiff on notice that they were willing to pervert the uses of the law to plaintiff's detriment.

Thus, giving every fair intendment to the complaint, we think a cause of action (the first cause, for compensatory damage) is stated for abuse of process. The second cause of action, for punitive damages for the same abuse of process, is sufficient and must stand or fall with the first cause of action.

GULOTTA, P.J., and HOPKINS, COHALAN and MUNDER, JJ., concur.

SHAPIRO, J., dissents and votes to reverse and grant the motion to dismiss the complaint, with the following memorandum:

The complaint attempts to set forth three causes of action. The first seeks compensatory damages for abuse of process, the second seeks punitive damages for the tort alleged in the first and the third alleges that the same facts alleged in the first cause of action constitute a prima facie tort. In my opinion none of them states a cause of action.

In substance, the allegations of the complaint, as amplified by the undisputed allegations and charge of the Public Employment Relations Board (PERB) (see CPLR 3211, subd. (c)) are as follows:

On March 28 and 29, 1972, 87 members of the defendant Farming-dale Classroom Teachers Association, Inc. (the Association), all employees of plaintiff the Board of Education of Farmingdale Union Free School District (the Board), were absent from their classes. Thereafter, in June, 1972, the PERB charged that the defendant Association had called a strike in violation of section 210 of the Civil Service Law and that by reason thereof its members had 'absented themselves from their duties without authorization'. The Board was not a party to the PERB proceeding. Hearings on the charge were scheduled for October 5, 6, 10 and 11. Defendant Kaufman, the attorney for the Association, on or before October 2 issued and served subpoenas on 87 teachers employed by the Board. The subpoenas were all returnable on October 5. The Board learned of this on or about October 3, when the subpoenaed employees informed their building principals of their need to be absent on October 5 in order to comply with the subpoenas. The Board's oral request to the Association's counsel to excuse the majority of the subpoenaed teachers on October 5 was refused. As a result the Board was compelled to engage 77 substitute teachers and to pay them $2,695 for their services in addition to having to pay the absent teachers $6,565 since the latter's absence was an approved absence under the Association's contract with the Board. This, the Board alleged in its first cause of action, was 'effected with full knowledge that the attendance of the eighty-seven (87) teachers as witnesses for the charged party would not and could not reasonably be required by defendants on the initial hearing date of October 5, 1972' and was done 'wrongfully and maliciously and with intent to injure and harass plaintiff,' thus constituting abuse of process.

The second cause of action is for punitive damages for the wrong alleged in the first cause because defendants 'seriously inconvenienced' the Board and 'disrupted' the 'educational process within the school district' on October 5.

The third cause of action realleges the facts stated in the first cause and states that, since the 'primary' purpose of defendants' conduct in subpoenaing the 87 teachers and requiring their presence at the PERB hearing 'was to insure the payment of the affected teachers for that day by plaintiff and for the further ulterior purpose of compelling plaintiff to engage the services of qualified substitutes to conduct classes at additional expense to the school district,' defendants' action constituted a prima facie tort.

The law on what constitutes the tort of abuse of process is clear. In the leading New York case on the question, Hauser v. Bartow, 273 N.Y. 370, 373--374, 7 N.E.2d 268, 269, Judge Hubbs described the action as follows:

"The gist of the action for abuse of process lies in the improper use of process after it is issued. To show that regularly issued process was perverted to the accomplishment of an improper purpose is enough.' Dean v. Kochendorfer, 237 N.Y. 384, 390, 143 N.E. 229, 231. 'The action is not for the wrongful bringing of an action or prosecution, but for the improper use, or rather 'abuse,' of process in connection therewith--as the Pennsylvania court has aptly put it, for a perversion of legal process. The process of law must be used improperly and this means something more than a proper use from a bad motive. * * * If the process is employed from a bad or ulterior motive, the gist of the wrong is to be found in the use which the party procuring the process to issue attempts to put it. If he is content to use the particular machinery of the law for the immediate purpose for which it was intended, he is not ordinarily liable, notwithstanding a vicious or vindictive motive. But the moment he attempts to attain some collateral objective, outside the scope of the operation of the process employed, a tort has been consummated. * * * The tortious character of the defendant's conduct consists of his attempt to employ a legitimate process for a legitimate purpose in an improper manner, and this point must be clearly shown by the plaintiff to entitle him to maintain his action.' Harper on The Law of Torts, § 272, pp. 593--595.

'It is not enough that the actor have an ulterior motive in using the process of the court. It must further appear that he did something in the use of the process outside of the purpose for which it was intended. (Cf. note, 27 Harvard Law Review, p. 594.) Every one has a right to use the machinery of the law, and bad motive does not defeat that right. There must be a further act done outside the use of the process--a perversion of the process. If he uses the process of the court for its proper purpose, though there is malice in his heart, there...