Filippi v. Filippi

• Decision Date: 22 October 2020
• Docket Number: Index 16-620225,2020-34979
• Parties: CAREYANN FILIPPI, Plaintiff, v. ROBERT FILIPPI, Defendant. Mot. Seq. No. 001-MD
• Court: New York Supreme Court

CAREYANN FILIPPI, Plaintiff,
v.
ROBERT FILIPPI, Defendant.

Mot. Seq. No. 001-MD

No. 2020-34979

Index No. 16-620225

Supreme Court, Suffolk County

October 22, 2020

Unpublished Opinion

PLAINTTFF'S ATTORNEYS: RAY, MITEV & ASSOCIATES Attorney for Plaintiff.

MITEV LAW FIRM, P.C., DEFENDANT'S ATTORNEYS: LONG TUMINELLO, LLP Attorney for Defendant.

PRESENT: Hon. SANFORD NEIL BERLAND Acting Justice of the Supreme Court.

SANFORD NEIL BERLAND JUDGE.

Upon the following papers read on this motion for summary judgment by defendant: Notice of Motion and supporting papers by defendant, filed September 18, 2019; Notice of Cross-Motion and supporting papers; Answering Affidavits and suppo1ting papers by plaintiff, filed December 11, 2019;and Replying Affidavit and supporting papers, filed May 28, 2020, it is, ORDERED that the motion by defendant for an order pursuant to CPLR 3212 granting him summary judgment dismissing the complaint is denied.

1

Plaintiff commenced this action against the defendant, her former husband and the father of their two children, asserting claims for malicious prosecution, abuse of process and relief pursuant to 42 USC § 1983. Plaintiff alleges that the defendant, who at the time was a New York City Police Department detective, wrongfully brought about, and in one instance himself effectuated, her arrest in 2013 and 2014 and her prosecution on a number of charges, including alleged violations of temporary orders of protection that he had obtained against the plaintiff and in favor of himself and the parties' children, that were ultimately dismissed or which culminated in her acquittal at trial. Plaintiff alleges, among other things, that the defendant knew that the charges were groundless and that he used his status as an NYPD detective and his law enforcement connections to press the case against her both to cause her harm and to advance his separate efforts further to reduce her parenting time with their two children. Among other things, the plaintiff further alleges that the defendant, who at the time had sole and residential custody of the two children and was seeking a further restriction on plaintiffs parenting time with the children^[1] who were then twelve years old, "induced, coerced, cajoled, threatened, importuned and otherwise pressured the . . . two children into signing false supporting statements" in connection with the complaint he made to police at that time and which led to plaintiffs arrest and prosecution. According to plaintiff, the defendant abandoned the prosecution after it had served his ulterior purposes and before it would have become necessary for him and the two children to testify at trial. The defendant denies plaintiffs allegations and now moves for summary judgment in his favor dismissing the complaint.

In support of his motion, defendant has submitted, among other things, his affidavit; the transcript of his deposition and of plaintiff s deposition; copies of an August 27, 2013 temporary order of protection and amended temporary orders of protection dated October 24, 2013, June 6, 2014 and May 15, 2015; the unsworn New York State Park Police depositions signed by each of the children on August 22, 2013; defendant's unsworn Suffolk County Police Department statement, dated January 27, 2014, identifying the two children as his; and the certificate of disposition showing that plaintiff was acquitted of charges of criminal contempt and endangering the welfare of a child and that the other charges against her were dismissed by Judge Bean on December 14, 2015. In substance, he argues that he merely reported the two incidents to the police and provided them with the information that led to the plaintiffs arrests and subsequent prosecution. In opposition, plaintiff contends, based upon essentially the same submissions, that issues of fact preclude the relief defendant is seeking.

It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hasp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 925 [1986]). However, "[a] movant fails to satisfy its prima facie burden by merely pointing out gaps in the plaintiffs case (see Englington Med., P.C. v. Motor Veh. Ace. Indem. Corp., 81 A.D.3d 223 [2011]; Shaft v. Motta, 73 A.D.3d 729, 730 [2010]; Doe v. Orange-Ulster Bd of Coop. Educ. Servs., 4 A.D.3d 387, 388 [2004])" (Blackwell v. Mikevin Management III, 88 A.D.3d 836 [2d Dept 2011]).

2

Further, the credibility of the parties is not an appropriate consideration for the court on a motion for summary judgment (S.J. Capelin Assoc, Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478 [1974]), and all competent evidence must be viewed in the light most favorable to the party opposing summary judgment (Benincasa v. Garrubo, 141 A.D.2d 636, 637, 529 N.Y.S.2d 797, 799 [2d Dept 1988]). Failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 318 [1985]). If a prima facie showing has been made, the burden shifts to the party opposing the summary judgment motion to produce evidence sufficient to establish the existence of a material issue of fact (see Alvarez v. Prospect Hasp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]).

The following facts are largely undisputed: The parties have been divorced since January 6, 2006. They have two children, Angelina and Robert, twins who were born in July 2001. Initially, the plaintiff had residential custody of both children, but by order dated January 31, 2012 (a copy of which is annexed as an exhibit to defendant's motion), the Special Referee, citing in particular plaintiffs straitened financial circumstances^[2], granted defendant's application and gave sole legal and residential custody of the children to him and allowed the plaintiff visitation according to a set parenting schedule. On June 6, 2013, alleging that an incident had occurred at his home, defendant...