Carroll v. New York Property Ins. Underwriting Ass'n

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SULLIVAN
• Citation: Carroll v. New York Property Ins. Underwriting Ass'n, 450 N.Y.S.2d 21, 88 A.D.2d 527 (N.Y. App. Div. 1982)
• Decision Date: 11 May 1982
• Parties: Richard E. CARROLL, et al., Plaintiffs-Appellants, v. NEW YORK PROPERTY INSURANCE UNDERWRITING ASSOCIATION, Defendant-Respondent.

Page 21

450 N.Y.S.2d 21

88 A.D.2d 527

Richard E. CARROLL, et al., Plaintiffs-Appellants, v. NEW YORK PROPERTY INSURANCE UNDERWRITING ASSOCIATION Defendant-Respondent.

Supreme Court, Appellate Division First Department.

May 11, 1982.

C. Nobiletti, New York City, for plaintiffs-appellants.

D. Goldstein, New York City, for defendant-respondent.

Before SULLIVAN, J. P., and CARRO, SILVERMAN and MILONAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered October 14, 1981, denying plaintiffs' motion for partial summary judgment on liability only, unanimously modified, on the law, with costs and disbursements, to the extent of dismissing the complaint, and, except as thus modified, affirmed.

Almost immediately after the settlement of an action brought by a corporation to recover for a loss under a fire policy, the sole shareholders, officers and directors of the corporate insured commenced the present action, alleging the commission of intentional torts by defendant, its officers and attorneys during the course of the investigation of the fire claim and in the prior judicial proceeding. Six causes of action are stated: abuse of process; malicious prosecution; assault; violation of human and civil rights; prima facie tort and one for punitive damages. Essentially, plaintiffs claim that defendant, in an attempt to evade payment of the fire claim, resorted to intimidating and coercive tactics, including an accusation of arson. It is undisputed that the fire was of an incendiary origin. Special Term correctly denied plaintiffs' motion for partial summary judgment on liability, since issues of fact exist, at least as to whether defendant committed the acts charged. The charge of arson, made during the course of a judicial proceeding, was absolutely privileged. (Martirano v. Frost, 25 N.Y.2d 505, 307 N.Y.S.2d 425, 255 N.E.2d 693.)

Special Term, however, should have gone further and dismissed the complaint since, quite apart from the serious question as to plaintiffs' standing even to maintain this action, they were not parties to the prior litigation and had no rights under the policy. All of the causes of action are insufficient and without basis, as a matter of law. On a motion for summary judgment, a court is empowered to search the record, even in the absence of a cross-motion. (See Jelinek v. New York, 25 A.D.2d 425, 266 N.Y.S.2d 766; see, also, Flaks, Zaslow & Co., Inc. v. Bank of Computer Network Corp., 66 A.D.2d 363, 413 N.Y.S.2d 1; CPLR 3212 This power is extended to an appellate court. (Davis v. Shelton, 33 A.D.2d 707, 304 N.Y.S.2d 722.) Aside from whatever other failings it may have, the cause of action for abuse of process is defective since defendant did not issue any process or commence any action. (See Board of Education v. Farmingdale Classroom Teachers' Association, Inc., 38 N.Y.2d 397, 404, 380 N.Y.S.2d 635, 343 N.E.2d 278.) For the same reason the remedy of malicious prosecution does not lie; moreover, the prior action did not terminate in plaintiffs' favor. (See Pagliarulo v. Pagliarulo, 30 A.D.2d 840, 293 N.Y.S.2d 13.) Threats, standing alone, do not constitute an assault. (See Prince v. Ridge, 32 Misc. 666, 66 N.Y.S. 454; 6 N.Y.Jur.2d, Assault-Civil Aspects, § 3, p. 196.) The cause of action for violation of civil...