Butler v. Ratner

• Decision Date: 08 December 1994
• Citation: 619 N.Y.S.2d 871,210 A.D.2d 691
• Parties: Steven S. BUTLER, Appellant-Respondent, v. Irene RATNER, Also Known as Irene Gertel, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 871

619 N.Y.S.2d 871

210 A.D.2d 691

Steven S. BUTLER, Appellant-Respondent, v. Irene RATNER, Also Known as Irene Gertel, Respondent-Appellant.

Supreme Court, Appellate Division Third Department.

Dec. 8, 1994.

Steven S. Butler, appellant-respondent in pro. per.

Irene Ratner, respondent-appellant in pro. per.

Before CARDONA, P.J., and MERCURE, WHITE and PETERS, JJ.

MERCURE, Justice.

Cross appeals (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Wood, J.), entered August 17, 1993 in Westchester County, which partially granted defendant's motion to dismiss the complaint.

The facts underlying this action, as alleged in the complaint, follow. The parties, both attorneys employed by the Unified Court System, were married in 1974 and divorced in 1987. By 1991, the parties had each remarried and settled with their families in different communities in Westchester County. Following a February 27, 1991 confrontation between the parties and in an effort to thwart defendant's application for membership in his synagogue, in November 1991 plaintiff distributed to the Rabbi and members of the Board of Trustees certain written materials intended to denigrate defendant and her standing with them. In response, defendant made a November 18, 1991 telephone call to plaintiff's immediate supervisor at the Appellate Term, Second Department, in an effort to coerce plaintiff to refrain from distributing further materials concerning defendant. On November 26, 1991, defendant filed a verified petition with her employer, Westchester County Family Court, commencing a proceeding under Family Court Act article 8 and seeking an order of protection, alleging that plaintiff had committed acts against her constituting harassment, menacing, reckless endangerment and attempted assault. A summons was issued by Family Court on November 26, 1991, together with a temporary order of protection, which, inter alia, restrained plaintiff from "distribut[ing] any materials, regarding [defendant]". Plaintiff subsequently sought and obtained an order of the Appellate Division, Second Department, vacating the order of protection, and the petition was ultimately dismissed on the merits.

Plaintiff's complaint alleges four causes of action: (1) abuse of process and (2) malicious prosecution in connection with defendant's initiation of the Family Court Act article 8 proceeding and the issuance of the summons and order of protection in connection therewith; (3) breach of contract, based upon defendant's failure to pay money and deliver personal property allegedly due plaintiff under the terms of the parties' 1987 separation agreement; and (4) defamation based upon defendant's November 18, 1991 statements to plaintiff's supervisor that plaintiff had "harassed" and "shoved" her and that plaintiff's distribution of the written materials concerning defendant was "illegal" and constituted a crime and, further, statements made in sworn affidavits submitted in connection with the Family Court proceeding. Defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(7). Supreme Court granted the motion with respect to the first two causes of action and denied it with respect to the remaining causes of action. The parties cross-appeal.

Initially, it is our view that Supreme Court properly dismissed the first cause of action alleging abuse of process. The gist of plaintiff's claim is that defendant's petition to Family Court falsely and maliciously accused plaintiff of committing acts constituting harassment, menacing, reckless endangerment and assault and was filed for the ulterior and illegitimate purpose of frustrating plaintiff's exercise of his constitutional right to disseminate documentary evidence as part of a legitimate effort to oppose defendant's membership in his synagogue. Even accepting, as we must, the truth of each of plaintiff's allegations (see, Sanders v. Winship, 57 N.Y.2d 391, 394, 456 N.Y.S.2d 720, 442 N.E.2d 1231), the complaint does not state a cause of action for abuse of process because the process was both issued (see, Parkin v. Cornell Univ., 78 N.Y.2d 523, 530-531, 577 N.Y.S.2d 227, 583 N.E.2d 939) and used (see, Curiano v. Suozzi, 63 N.Y.2d 113, 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324; Dean v. Kochendorfer, 237 N.Y. 384, 390, 143 N.E. 229) for its intended purpose, i.e., to restrain plaintiff's commission of the family offenses alleged in the petition pending a resolution on the merits. Significantly, the falsity of the allegations and defendant's malicious motive in making them do not, of themselves, give rise to a cause of action for abuse of process (see, Curiano v. Suozzi, supra; Hauser v. Bartow, 273 N.Y. 370, 374, 7 N.E.2d 268; Prosser and Keeton, Torts § 121, at 897-898 [5th ed].

We also agree with Supreme Court's determination dismissing the second cause of action alleging malicious prosecution. As applied with regard to a civil action or proceeding, the elements of that tort are the institution of an action or proceeding by the defendant, malice as the motivating factor, an absence of probable cause to support the proceeding, and termination of the proceeding in favor of the plaintiff (see, Burt v. Smith, 181 N.Y. 1, 5, 73 N.E. 495, writ dismissed 203 U.S. 129, 27 S.Ct. 37, 51 L.Ed. 121; Hornstein v. Wolf, 109 A.D.2d 129, 132, 491 N.Y.S.2d 183, affd 67 N.Y.2d 721, 499 N.Y.S.2d 938, 490 N.E.2d 857; see also, Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248; see generally, Prosser and Keeton, Torts § 120 [5th ed]. "Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty * * * " (Colon v. City of New York, supra, at 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 [citations omitted]. Because...