Coscia v. El Jamal

• Decision Date: 27 December 2017
• Docket Number: 2014–06742,Index No. 60236/11,2015–03157
• Citation: 69 N.Y.S.3d 320,156 A.D.3d 861
• Parties: Brent COSCIA, Respondent, v. Sammy EL JAMAL, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 861

69 N.Y.S.3d 320

Brent COSCIA, Respondent,

v.Sammy EL JAMAL, et al., Appellants.

2014–06742

2015–03157

Index No. 60236/11

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 14, 2017

December 27, 2017

Smith, Buss & Jacobs, LLP, White Plains, N.Y. (Robert A. Spolzino of counsel), for appellant Sammy El Jamal.

Gaines, Novick, Ponzini, Cossu & Venditti, LLP, White Plains, N.Y. (Denise M. Cossu of counsel), for appellant Bryan Orser.

Oxman Law Group, PLLC, White Plains, N.Y. (Mark S. Oxman, Lois N. Rosen, and Julie Fetchersky of counsel), for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.

DECISION & ORDER

Appeals from a judgment of the Supreme Court, Westchester County (Lester B. Adler, J.), dated June 13, 2014, and an order of that court (Francesca E. Connolly, J.) dated April 1, 2015. The judgment, insofar as appealed from, upon denying the defendants' motion pursuant to CPLR 4401, made at the close of evidence, for judgment as a matter of law dismissing the complaint, and upon a jury verdict, is in favor of the plaintiff and against the defendant Sammy El Jamal in the principal sums of $285,000 for compensatory damages on the cause of action alleging malicious prosecution, $1,500,000 for punitive damages on that cause of action, $1,500,000 for compensatory damages on the cause of action alleging prima facie tort, and $1,500,000 for compensatory damages on the cause of action alleging abuse of process, and in favor of the plaintiff and against the defendant Bryan Orser in the principal sums of $125,000 for compensatory damages on the cause of action alleging malicious prosecution, and $100,000 for compensatory damages on the cause of action alleging prima facie tort. The order denied the defendants' separate motions pursuant to CPLR 4404(a), in effect, to set aside the jury verdict in the interest of justice and for a new trial.

ORDERED that the judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provisions thereof awarding damages on the cause of action alleging prima facie tort and substituting therefor a provision dismissing that cause of action, and (2) by deleting the provisions thereof awarding compensatory damages on the cause of action alleging abuse of process and punitive damages on the cause of action alleging malicious prosecution against the defendant Sammy El Jamal; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements,and the matter is remitted to the Supreme Court, Westchester County, for a new trial on the issues of compensatory damages on the cause of action alleging abuse of process and punitive damages on the cause of action alleging malicious prosecution against the defendant Sammy El Jamal, unless, within 30 days after service upon him of a copy of this decision and order, the plaintiff serves and files in the office of the Clerk of the Supreme Court, Westchester County, a written stipulation consenting to reduce the amount of compensatory damages on the cause of action alleging abuse of process against the defendant Sammy El Jamal from the principal sum of $1,500,000 to the principal sum of $25,000, to reduce the amount of punitive damages on the cause of action alleging malicious prosecution against that defendant from the principal sum of $1,500,000 to the principal sum of $1,000,000, and to the entry of an appropriate amended judgment; in the event that the plaintiff so stipulates, then the judgment, as so modified, reduced, and amended, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the appeal from so much of the order as denied those branches of the defendants' separate motions which were pursuant to CPLR 4404(a), in effect, to set aside so much of the jury verdict as awarded damages on the cause of action alleging prima facie tort is dismissed as academic in light of our determination on the appeal from the judgment dismissing that cause of action, without costs or disbursements; and it is further,

ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.

In June 2011, the plaintiff was arrested and charged with aggravated harassment in the second degree based on allegations that he made a threatening telephone call to his employer, the defendant Sammy El Jamal, which was overheard by another employee, the defendant Bryan Orser. After a criminal trial resulted in the plaintiff's acquittal, he commenced this action against the defendants, seeking to recover damages for malicious prosecution, abuse of process, and prima facie tort.

The matter proceeded to a jury trial, and at the close of evidence, the defendants moved pursuant to CPLR 4401 for judgment as a matter of law dismissing the cause of action to recover damages for malicious prosecution on the ground that the plaintiff failed to prove that they initiated the criminal proceeding. Additionally, they moved for judgment as a matter of law dismissing the complaint based on the plaintiff's alleged failure to establish that he sustained any damages. The Supreme Court denied the motion. The jury returned a verdict on the issues of liability and compensatory damages in favor of the plaintiff, finding El Jamal liable for malicious prosecution, prima facie tort, and abuse of process, and finding Orser liable for malicious prosecution and prima facie tort. The jury awarded compensatory damages in favor of the plaintiff and against El Jamal in the principal sums of $285,000 for malicious prosecution, $1,500,000 for prima facie tort, and

$1,500,000 for abuse of process. The jury also awarded compensatory damages in favor of the plaintiff and against Orser in the principal sums of $125,000 for malicious prosecution and $100,000 for prima facie tort. At the conclusion of the punitive damages phase of the trial, the jury awarded punitive damages in favor of the plaintiff and against El Jamal in the principal sum of $1,500,000 on the cause of action alleging malicious prosecution.

Subsequently, a judgment dated June 13, 2014, was entered in favor of the plaintiff and against El Jamal and Orser. In an order dated April 1, 2015, the Supreme Court denied the defendants' separate motions pursuant to CPLR 4404(a), in effect, to set aside the jury verdict in the interest of justice and for a new trial. The defendants separately appeal from both the judgment and the order.

Contrary to the defendants' contention, the Supreme Court did not err in denying their motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the cause of action to recover damages for malicious prosecution on the ground that the plaintiff failed to prove that they initiated the criminal proceeding, and dismissing the complaint based on the plaintiff's failure to establish that he sustained any damages. To be entitled to a judgment as a matter of law pursuant to CPLR 4401, a defendant has the burden of showing that, upon the evidence presented, "there is no rational process by which the jury could find in favor of the plaintiff and against the moving defendant" ( Cioffi v. Klein, 131 A.D.3d 914, 915, 15 N.Y.S.3d 845 ; see Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 ; Fasolas v. Bobcat of N.Y., Inc., 150 A.D.3d 147, 157, 53 N.Y.S.3d 61 ). "In considering the motion for judgment as...