Four Star Stage Lighting, Inc. v. Merrick
| Decision Date | 10 March 1977 |
| Citation | 392 N.Y.S.2d 297,56 A.D.2d 767 |
| Parties | FOUR STAR STAGE LIGHTING, INC., et al., Plaintiffs-Respondents, v. David MERRICK et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
P. R. Forlenza, New York City, for plaintiffs-respondents.
D. Merrick, pro se.
D. W. Peck, New York City, for defendants-appellants.
Before MURPHY, J.P., and LUPIANO, NUNEZ, MARKEWICH and LYNCH, JJ.
Orders, Supreme Court, New York County, entered September 17, 1976, denying defendants' motions for an order dismissing the complaint for failure to state a cause of action or staying this action pending the resolution of a prior proceeding, unanimously modified, on the facts and in the exercise of discretion, by reversing so much thereof as denied the branches of the motions for a stay, and by granting those branches of the motions, and as modified, otherwise affirmed, without costs and disbursements.
In determining whether a particular cause of action states a valid basis for relief, the averments in the cause must be viewed most favorably to the plaintiff. The gravamen of an action for abuse of process is wilfully using legal process for a purpose not justified by law and to effect an object not within its proper scope (1 N.Y.Jur., Abuse of Process, § 3, p. 56). The first and second causes allege, Inter alia, that defendants used the order of seizure in order to force plaintiffs into buying defendant Merrick's equipment at an unreasonable price. This allegation is sufficient to plead meritorious causes for abuse of process since it suggests that the defendants were using the order of seizure for an improper purpose.
Section 487 subd. 1 of the Judiciary Law provides that an attorney is guilty of a misdemeanor and must pay treble damages in a civil action if he should deceive a court. To the extent that the third cause alleges that defendant Aslan deceived Justice Tyler by substituting a page in defendant Merrick's affidavit, it states a valid basis for relief.
It is the general rule that words not actionable in themselves may become so by being spoken of persons engaged in a particular calling or profession. Thus, words are libelous if they affect a person in his profession, trade, or business, by imputing to him any kind of fraud, dishonesty, misconduct, incapacity, unfitness or want of any necessary qualification in the exercise thereof (34 N.Y.Jur., Libel and Slander, § 36, p. 507). Defendant Aslan's...
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...incapacity, unfitness or want of any necessary qualification in the exercise thereof." (quoting Four Star Stage Lighting, Inc. v. Merrick , 56 A.D.2d 767, 392 N.Y.S.2d 297 (1st Dep't 1977) )). Further, "[a] written statement that ‘charges a person with the commission of a crime’ ... is libe......
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