Danahy v. Meese

• Decision Date: 30 October 1981
• Citation: 84 A.D.2d 670,446 N.Y.S.2d 611
• Parties: E. Timothy DANAHY, III, Respondent, v. Harold F. MEESE, Appellant and Eugene J. Fechter, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 611

446 N.Y.S.2d 611

84 A.D.2d 670

E. Timothy DANAHY, III, Respondent, v. Harold F. MEESE, Appellant and Eugene J. Fechter, et al., Defendants.

Supreme Court, Appellate Division,

Fourth Department.

Oct. 30, 1981.

Harold F. Meese, pro se.

Gross, Shuman, Brizdle, Laub & Gilfillan, P. C., Buffalo by David Laub, Buffalo, for respondent.

Before DILLON, P. J., and SIMONS, CALLAHAN, DENMAN and MOULE, JJ.

MEMORANDUM:

This litigation arises out of an incident in which defendant Meese ordered a computer terminal from Corson Computer Corporation, Inc. in Tonawanda, New York and paid $2,873.20 for it. Corson was in financial difficulty at the time and after defendant forwarded his money to it, but before he received his computer,Manufacturers and Traders Trust Co., a creditor, seized the company's assets, including defendant's check. Plaintiff Moxley is an officer of Manufacturers and Traders Trust Co. and plaintiff Danahy was treasurer of Corson. Defendant, believing that the two men acted in concert to bilk him of his money, brought a civil action in fraud against them and he thereafter went to the District Attorney and requested that he prosecute them for grand larceny. When the District Attorney refused to submit the case to the Grand Jury, defendant went to defendants Fechter and Birner, officers of the State Police, and they, in turn, took him to a Justice of the Peace who issued a warrant for plaintiffs' arrests. The criminal charges were subsequently dismissed for insufficient evidence.

These actions by plaintiffs followed. They seek to recover damages from defendant Meese, appellant herein, and defendants Fechter and Birner on multiple theories of liability. Plaintiff Moxley alleges fifteen causes of action, and plaintiff Danahy alleges seven.

Defendant has maintained throughout the litigation that the criminal charges were substantiated by various documents and letters and by tape recordings of conversations between the plaintiffs and between himself and the plaintiffs proving their intent to defraud him. After issue was joined, plaintiffs moved to depose defendant and for discovery of this documentary evidence. The original notice to produce was too broad, but after the examination of defendant, plaintiffs properly itemized the matters to be produced and notified defendant that unless he produced it they would move to have his answer stricken. When defendant failed to produce the material, plaintiffs moved to strike his answers pursuant to CPLR 3126.

Defendant submitted a cross motion seeking to dismiss the plaintiffs' complaints pursuant to CPLR 3211, subd. pars. 1 and 7, for a protective order, and for judicial supervision of further disclosure. It appears that the evidence plaintiffs seek to discover was considered by the State Police and the issuing magistrate before issuance of the warrant and in support of it. It is material and relevant to the actions, therefore, and since defendant has offered no excuse for his failure to comply, the conditional order to strike his answers was properly granted. Contrary to defendant's contentions, the material was not privileged for any statutory reason and judicial supervision of the discovery was not warranted under the circumstances.

Considering next defendant's motion to dismiss, the motion pursuant to subdivision par. 1 of section 3211, a defense founded on documentary evidence, is untimely and was properly denied (CPLR 3211 subd. ).

In considering the motions to dismiss for failure to state a cause of action, we accept the allegations of the complaints as true, as we must, for purposes of this pretrial motion (see 219 Broadway Corp. v. Alexanders, Inc., 46 N.Y.2d 506, 509, 414 N.Y.S.2d 889, 387 N.E.2d 1205).

The first causes of action in both complaints seeking damages for malicious prosecution are sufficiently pleaded (see Broughton v. State of New York, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. den. 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257).

The seventh causes of action in both complaints sound in libel. Plaintiffs allege that defendant libeled them by maliciously preparing, publishing and mailing to the U. S. Comptroller of the Currency a letter and affidavit charging them with the commission of a crime. Defendant contends that the material was absolutely privileged because sent to an administrative agency possessing quasi-judicial power to regulate the banks (see Toker v. Pollak, 44 N.Y.2d 211, 221-222, 405 N.Y.S.2d 1, 376 N.E.2d 163). The Comptroller of Currency had no jurisdiction to issue cease and desist orders involving member state banks, however, and the privilege was, at best, qualified. That being so, plaintiffs are entitled to a trial to attempt to establish facts proving malice (see Martin v. City of Albany, 42 N.Y.2d 13, 17, 396 N.Y.S.2d 612, 364 N.E.2d 1304). The seventh causes of action in each complaint are therefore sufficiently pleaded.

Plaintiff Moxley's ninth and plaintiff Danahy's fifth causes of action in libel concern a newspaper article which reported an interview in which defendant, disputing the District Attorney, asserted that there was sufficient evidence to charge plaintiffs with grand larceny and that the magistrate issuing the arrest warrant had so determined. The statement is libelous (see Weiner v. Vogel, 18 A.D.2d 748, 235 N.Y.S.2d 428; Restatement, Torts 2d, § 571) and defendant's claim of truth presents only factual issues for trial.

Plaintiff Danahy's second cause of action claiming abuse of process alleges that the warrant of arrest was issued for a malicious and unlawful purpose to induce plaintiff to settle defendant's civil claim for damages on terms more favorable to him. The cause of action is sufficiently stated (see Board of Educ. of Farmingdale Union Free School District v. Farmingdale Classroom Teachers Ass'n. Local 1889, AFT AFL-CIO, 38 N.Y.2d 397, 403, 380 N.Y.S.2d 635,...