Christenson v. Gutman

• Decision Date: 23 April 1998
• Citation: 671 N.Y.S.2d 835,249 A.D.2d 805
• Parties: , 1998 N.Y. Slip Op. 3767 William M. CHRISTENSON et al., Appellants-Respondents, v. Joseph C. GUTMAN Jr. et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 835

671 N.Y.S.2d 835

249 A.D.2d 805, 1998 N.Y. Slip Op. 3767

William M. CHRISTENSON et al., Appellants-Respondents, v. Joseph C. GUTMAN Jr. et al., Respondents-Appellants.

Supreme Court, Appellate Division Third Department.

April 23, 1998.

Walter, Thayer & Mishler (Mark S. Mishler, of counsel), Albany, for appellants-respondents.

Matthew J. Clyne, Albany, for respondents-appellants.

Before CARDONA, P.J., and WHITE, PETERS, SPAIN and CARPINELLO, JJ.

SPAIN, Justice.

Cross appeals from an order of the Supreme Court (Teresi, J.), entered March 13, 1997 in Albany County, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint and granted plaintiffs' cross motion seeking leave to discontinue the second cause of action without prejudice.

The parties herein own adjacent parcels of land in the Town of Bethlehem, Albany County. Following numerous allegations of harassment and reports to police by both parties, plaintiffs commenced the instant action in February 1996 alleging five causes of action for abuse of legal process, Federal civil rights violations pursuant to 42 U.S.C. § 1983, prima facie tort, defamation and private nuisance. In answering, defendants denied the majority of the allegations, asserted an affirmative defense of failure to state a cause of action and counterclaimed against plaintiff William M. Christenson for damage to defendants' fence. In May 1996, plaintiffs provided a response to the demand for a bill of particulars and were deposed. Defendants thereafter moved for summary judgment dismissing the complaint for failure to state a cause of action. Plaintiffs cross-moved for a discontinuance of the second (Federal civil rights) cause of action without prejudice pursuant to CPLR 3217(b) and for leave to serve an amended complaint pursuant to CPLR 3025(b); notably, plaintiffs did not oppose the dismissal with prejudice of the first (abuse of process) and third (prima facie tort) causes of action. In seeking to amend the complaint, however, plaintiffs sought to add causes of action for malicious prosecution and intentional infliction of emotional distress, as well as to join co-owners of plaintiffs' property as plaintiffs with regard to the fifth (private nuisance) cause of action.

Supreme Court granted defendants' motion for summary judgment dismissing the first, third, fourth and fifth causes of action of the original complaint, finding the claims legally insufficient. With regard to plaintiffs' cross motion, the court granted the motion to discontinue the second cause of action without prejudice, but denied the motion for leave to amend and supplement the complaint; specifically, in denying plaintiffs' cross motion for leave to amend, the court found that the co-owners of plaintiffs' property would be proper plaintiffs if it were to allow the private nuisance claim, but, as the private nuisance claim was without merit, that portion of the motion must be denied. Furthermore, the court found that plaintiffs failed to demonstrate that they had actually suffered severe emotional distress and, therefore, also denied leave to amend for intentional infliction of emotional distress. Plaintiffs appeal from that portion of Supreme Court's order which granted defendants' motion for summary judgment dismissing the original fourth and fifth causes of action for defamation and private nuisance, as well as from the denial of their cross motion for leave to amend. Defendants cross-appeal from that portion of said order which granted plaintiffs leave to discontinue the second cause of action without prejudice.

Initially, we conclude that Supreme Court properly granted plaintiffs' cross motion pursuant to CPLR 3217 for a voluntary discontinuance without prejudice. CPLR 3217(b) provides that, upon an order of the court, an action may be voluntarily discontinued "upon terms and conditions, as the court deems proper". Absent a showing of special circumstances, including prejudice or other improper consequences, a motion for voluntary discontinuance is generally granted (see, Tucker v. Tucker, 55 N.Y.2d 378, 383-384, 449 N.Y.S.2d 683, 434 N.E.2d 1050; Mancinelli v. Mancinelli, 228 A.D.2d 747, 643 N.Y.S.2d 736). The authority to grant or deny a motion pursuant to CPLR 3217(b) is within the sound discretion of the trial court (see, Tucker v. Tucker, supra, at 383, 449 N.Y.S.2d 683, 434 N.E.2d 1050; Mancinelli v. Mancinelli, supra, at 747, 643 N.Y.S.2d 736). Upon our review of the record, we agree with Supreme Court that defendants failed to provide any evidence of prejudice that would outweigh the prejudice to plaintiffs in being prohibited from bringing their claim in the future.

Next, we conclude that Supreme Court did not err in granting defendants' motion for summary judgment with regard to the causes of action sounding in defamation and private nuisance. "A qualified privilege arises when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest * * * " (Grier v. Johnson, 232 A.D.2d 846, 847, 648 N.Y.S.2d 764 [citations omitted]; see, Toker v. Pollak, 44 N.Y.2d 211, 219, 405 N.Y.S.2d 1, 376 N.E.2d 163). Such privilege has broad application (see, Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 259, 633 N.Y.S.2d 106), but if abused will no longer be applicable (see, Grier v. Johnson, supra, at 847, 648 N.Y.S.2d 764; see also, Liberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344). If a plaintiff can show that the statement was made with malice by producing evidence of a deliberate intent to ignore or avoid the truth, the privilege will be defeated (see, Grier v. Johnson, supra, at 848, 648 N.Y.S.2d 764; see also, Toker v. Pollak, supra, at 219, 405 N.Y.S.2d 1, 376 N.E.2d 163; Whelehan v. Yazback, 84 A.D.2d 673, 674, 446 N.Y.S.2d 626). However, "[c]onclusory allegations of malice, or charges based upon surmise, conjecture or suspicion, will not defeat a claim of qualified privilege" (Grier v. Johnson, supra, at 849, 648 N.Y.S.2d 764).

Here, defendant Carol-Lisa Gutman allegedly told a neighbor that William Christenson had yelled at and struck the neighbor's child. This report was investigated by the neighbor and apparently was unfounded. In addition, calls were made by an unidentified caller to the local Department of Social Services alleging that plaintiffs were abusing or maltreating their children. Such allegations were determined to be unfounded and, as a result, the reports in this regard were sealed. Plaintiffs also alleged that defendants sent defamatory letters to the Chief of Police and the local prosecutor. Here, however, Supreme Court properly found that the "common interest" exception applied to the facts of this case. Therefore, plaintiffs' conclusory and speculative allegations that defendants acted with malice were insufficient to overcome this qualified privilege (see, id., at 849, 648 N.Y.S.2d 764). As plaintiffs did not submit any evidence of malice or intentional disregard for the truth (see, Feldschuh v. State of New York, 240 A.D.2d 914, 915, 658 N.Y.S.2d 772, 774; see also, Liberman v. Gelstein, supra, at 439, 590 N.Y.S.2d 857, 605 N.E.2d 344), we conclude that Supreme Court did not abuse its discretion in granting summary judgment in favor of defendants on the defamation cause of action.

We also reject plaintiffs' contention that Supreme Court improperly granted summary judgment dismissing their cause of action for private nuisance. Nuisance involves the interference with the use or enjoyment of one's land by annoyance, inconvenience or injury (see, Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 567-569, 394 N.Y.S.2d 169, 362 N.E.2d 968). Such interference can be either intentional and unreasonable or negligent and reckless (see, id., at 569-570, 394 N.Y.S.2d 169, 362 N.E.2d 968). In addition, the interference must be substantial and can be caused by an individual's actions or failure to act (see, id., at 570, 394 N.Y.S.2d 169, 362 N.E.2d 968; see also, Langan v. Bellinger, 203 A.D.2d 857, 857-858, 611 N.Y.S.2d 59). An individual's conduct becomes actionable when it is purposeful or the resulting interference is known or substantially certain to result (see, Copart Indus. v. Consolidated Edison Co. of N.Y., supra, at 571, 394 N.Y.S.2d 169, 362 N.E.2d 968). A plaintiff must, however, come forward with proof sufficient to demonstrate a triable issue of fact to avoid summary judgment (see, Langan v. Bellinger, supra, at 858, 611 N.Y.S.2d 59). Here, there was no...