Hammond v. Equinox Holdings LLC

• Decision Date: 22 March 2022
• Docket Number: Index 155061/2019
• Parties: STEVEN HAMMOND, Plaintiff, v. EQUINOX HOLDINGS LLC, EQUINOX WALL STREET, INC., MICHAEL ALEXANDER Defendant.
• Court: New York Supreme Court

2022 NY Slip Op 30909(U)

STEVEN HAMMOND, Plaintiff, v. EQUINOX HOLDINGS LLC, EQUINOX WALL STREET, INC., MICHAEL ALEXANDER Defendant.

Index No. 155061/2019

Supreme Court, New York County

March 22, 2022

Unpublished Opinion

PRESENT: HON. PAUL A. GOETZ Justice

DECISION + ORDER ON MOTION

PAUL A. GOETZ, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 008) 220, 221, 222, 223, 224, 225, 226, 227, 228 229, 232 were read on this motion to/for DISMISSAL.

In this defamation action, plaintiff, a former member of Equinox Gym moves pursuant to CPLR 3211 to dismiss defendant Michael Alexander's counterclaim for abuse of process. Defendant Alexander cross-moves pursuant to CPLR 3211(a)(7) to dismiss the complaint.

With regard to plaintiffs motion to dismiss the counterclaim "[a]buse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective" (Curiano v. Suozzi, 63 N.Y.2d 113, 116 [1984]). Further, "the gist of the action for abuse of process lies in the improper use of process after it is issued" (Williams v. Williams, 23 N.Y.2d 592, 569 [1969]). Here, defendant does not allege that, after plaintiff filed this lawsuit, plaintiff used the lawsuit "to gain an advantage collateral to its legitimate ends" (Bonarco, Ltd. v. Cossington Overseas, 269 A.D.2d 158, 158-59 [1st Dep't 2000] [holding that Russian court's restraining order on plaintiffs sale of stock was insufficient to support abuse of process claim]; I.G. Second Generation, 17 A.D. at 207-08 [stating that there was no indication that "process" was perversely utilized by defendants where defendants in prior action sought declaration that they were entitled to possession of the subject premises which relief was entirely appropriate and not collateral to defendants' objective of securing an exclusive right to the premises]). Moreover, the allegation that plaintiff was motivated by malice and hatred in bringing the action is insufficient to give rise to a cause of action for abuse of process (I.G. Second Generation, 17 A.D.3d at 207). Accordingly, the counterclaim will be dismissed. However, the request for sanctions is denied as the counterclaim was not patently frivolous.

Turning to the cross-motion, plaintiff argues that the motion cannot be considered because it is untimely. However, under CPLR 3211(e), a motion under CPLR 3211(a)(7) can be made at any time, even after the answer is filed. Therefore, the cross-motion will be considered on the merits.

With regard to the defamation cause of action, the cause of action must be dismissed to the extent it is based on the publications alleged in paragraphs 65, 68 and 102-107. These allegations are deficient because they fail to allege in haec verba the particular defamatory words used by defendant (BCRE 230 Riverside LLC, 59 A.D.3d 282, 283 [1st Dep't 2009] [holding that "words to the effect" that defendant had been tossing urine and other fluids and objects from the terrace of his apartment were insufficient to satisfy the particularity requirements of CPLR 3016]; Simpson v. Cook Pony Farm Real Estate, 12 A.D.3d 496, 497 [2d Dep't 2004] [holding that statements to colleagues regarding defendant's dissatisfaction with plaintiffs software and indicating that plaintiff stole listings from defendant were insufficient because plaintiffs "did not set forth actual words complained of']; Wadsworth v. Beaudet, 267 A.D.2d 727, 729 [3d Dep't 1999] [holding that allegations that defendant told pizzeria customers that plaintiff had stolen money from them fails to comply with CPLR 3016 that "the defamatory words be set forth in haec verba"]). However, to the extent that the defamation claim is based on the statements alleged in paragraphs 28 and 29, the claim is sufficient because these paragraphs state directly the particular words complained of. Moreover, to the extent that this particular statement may be protected by the common interest privilege, plaintiff has sufficiently alleged that defendant made the statement with actual malice (Complaint, paragraph 45) and thus the claim cannot be dismissed on this basis (Liberman v. Gelstein, 80 N.Y.2d 429, 437-438 [1992]).

With regard to the claim for intentional infliction of emotional distress, this claim must be dismissed as defendant's alleged report to his supervisor and the reporting of the story to a newspaper is insufficient to rise to the level of extreme and...