Drago v. Buonagurio

• Decision Date: 23 February 1978
• Citation: 402 N.Y.S.2d 250,61 A.D.2d 282
• Parties: Eugene E. DRAGO, Appellant, v. Madeline BUONAGURIO, as Administratrix of the Estate of Francis Buonagurio, Deceased, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 250

402 N.Y.S.2d 250

61 A.D.2d 282

Eugene E. DRAGO, Appellant, v. Madeline BUONAGURIO, as Administratrix of the Estate of Francis Buonagurio, Deceased, et al., Respondents.

Supreme Court, Appellate Division, Third Department.

Feb. 23, 1978.

Harold E. Blodgett, Schenectady, for appellant.

Carter, Conboy, Bardwell, Case & Blackmore, Albany (James S. Carter, Albany, of counsel), for respondents.

Before MAHONEY, P. J., and GREENBLOTT, SWEENEY, KANE and HERLIHY, JJ.

SWEENEY, Justice.

The question presented on this appeal is whether the complaint states facts sufficient to constitute a cause of action. Special Term determined it did not and dismissed. We arrive at a contrary conclusion and, therefore, must reverse.

The complaint alleges that plaintiff, a doctor, and others, were sued in an action brought by defendant Madeline Buonagurio, as administratrix of the estate of Francis Buonagurio, deceased, wherein it was alleged that because of certain specified acts of malpractice committed by plaintiff, Francis Buonagurio died and his estate sustained damage in the sum of $1,500,000; that said action was commenced at the direction of the defendant attorney Brownstein; that, in fact, plaintiff never had Francis Buonagurio as a patient during the illness which allegedly caused his death, nor did he treat him directly or indirectly during said illness; that no basis existed for designating plaintiff as a defendant in said action; that it was done indiscriminately and as a discovery device in order to ascertain where responsibility could be placed; that defendant Brownstein's actions were, among other things, malicious, unethical and grossly negligent; and that plaintiff suffered much mental anguish, defamation of character and was otherwise damaged.

As we are concerned solely with the sufficiency of the complaint, the factual allegations are accepted as true (Kober v. Kober, 16 N.Y.2d 191, 264 N.Y.S.2d 364, 211 N.E.2d 817), and the complaint should not be dismissed merely because it is inartistically drawn (Foley v. D'Agostino, 21 A.D.2d 60, 248 N.Y.S.2d 121). Furthermore the complaint should be liberally construed and if any cause of action can be discerned from the facts alleged, it should not be dismissed (Torrey Delivery v. Chautauqua Truck Sales & Serv., 47 A.D.2d 279, 366 N.Y.S.2d 506).

In order to resolve the controversy it is necessary to analyze the complaint in light of the various possible tort causes of action that might be spelled out from it. Although it contains many of the elements common in traditional theories of tort, it does not fit neatly into any of them. While malice is alleged, the necessary ingredient of interference with plaintiff's person or property required for malicious prosecution is lacking (Williams v. Williams, 23 N.Y.2d 592, 596, 298 N.Y.S.2d 473, 476, 246 N.E.2d 333, 335). Also lacking is an allegation that the malpractice action against plaintiff terminated in his favor (Lewis v. Village of Deposit, 40 A.D.2d 730, 336 N.Y.S.2d 672, affd. 33 N.Y.2d 532, 347 N.Y.S.2d 434, 301 N.E.2d 422). Since an attorney in this State is not liable to third parties for negligence in performing services for his client, a cause of action so based on negligence cannot prevail (Joffe v. Rubenstein, 24 A.D.2d 752, 263 N.Y.S.2d 867, app. dsmd. 21 N.Y.2d 721, 287 N.Y.S.2d 685, 234 N.E.2d 706). A careful reading of the complaint requires consideration of a possible cause of action for abuse of process. Here again, a necessary prerequisite is missing. The gist of such a cause of action is the improper use of process after it has been issued, and there must be an unlawful interference with one's person or property under color of process (Williams v. Williams, supra ). The summons in the malpractice action against plaintiff was properly issued to institute the action and there is no allegation of improper use of process thereafter. Finally, the statutory offense of barratry was repealed in 1965 (L.1965, ch. 1030).

Must we conclude, therefore, that since the traditional theories of tort do not appear to afford relief to plaintiff, he has no remedy? We think not, for the law should never suffer an injury and a damage without a remedy (Kujek v. Goldman, 150 N.Y. 176, 44 N.E. 773; Halio v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759; cf. Fischer v. Maloney, 43 N.Y.2d ---, --- N.Y.S.2d ---, --- N.E.2d ---- (Feb. 14, 1978)).

We pass to a consideration of the more innovative theory designated prima facie tort which was first enunciated by Mr. Justice Holmes in Aikens v. Wisconsin, 195 U.S. 194, 25 S.Ct. 3, 49 L.Ed. 154. Thereafter, it was recognized by many states, including New York (Opera on Tour, Inc. v. Weber, 285 N.Y. 348, 34 N.E.2d 349). It has been defined as the intentional infliction of harm, resulting in damage, without excuse or justification, by an act or series of acts which would otherwise be lawful (Coopers & Lybrand v....