Mahoney v. Mayowski
| Decision Date | 02 October 2020 |
| Docket Number | Index 612744/2017 |
| Citation | 2020 NY Slip Op 34843 (U) |
| Parties | DENISE MAHONEY, Plaintiff, v. TERRY MAYOWSKI, MELISSA TEEHAN and WILLIAM WEIGELT, Defendant WILLIAM WEIGELT, Third-Party Plaintiff, v. TRACY MALONE, Third-Patty Defendant. |
| Court | New York Supreme Court |
Unpublished opinion
MOTION DATE 2/27/20 (001 & 002)
MOTION DATE 3/19/20 (003 & 004)
ADJ. DATE 7/23/20
Mot Seq.#001-MG, #002-MG #003, MG #004, MG; CASEDISP
YOUNG & YOUNG, LLP Attorney for Plaintiff
JACOB R. FLEITMAN, P.C. Attorney for Defendanss Mayowski and Teehan
PETER SVERD, ESQ. Attorney for Defendant/Third-Party Plaintiff
YOUNG & YOUNG, LLP Attorney for Third-Patty Defendant Tracy Malone
PRESENT: HON. JOSEPH A. SANTORELLI JUSTICE OF THE SUPREME COURT
HON JOSEPH A. SANTORELLI J.S.C.
Upon the following papers read on this e-filed motion for dismissal/summary judgment: Notice of Motion/ Order to Show Cause a?d supporting papers by defendant/third-party plaintiff William Weigelt dated February 5, 2020. by defendants Terry Mayowski and Melissa Teehan. dated February 6, 2020, by plaintiff Denise Mahoney. dated February 20 2020, and by third-party defendant Tracy Malone. dated February 20, 2020; Notice of Cross Motion and supporting papers, Answering Affidavits and supporting papers by plaintiff Denise Mahoney. dated March 18, 2020; Replying Affidavit supporting papers by defendant/third-party plaintiff William Weigelt dated July 22, 2020. by defendants Terry Mayowski and Melissa Teehan. dated July 22. 2020 Other Memoranda of Law; it is
ORDERED that the motion (#001) by defendant/third-party plaintiff William Weigelt, the motion (#002) by defendants Terry Mayowski and Melissa Teehan, the motion (#003) by plaintiff Denise Mahoney, and the motion (#004) by third-party defendant Tracy Malone are consolidated for the purposes of this determination; and it is further;
ORDERED that the motion by defendant/third-party plaintiff William Weigelt for dismissal of the complaint against him is granted; and it is
ORDERED that the motion by defendants Terry Mayowski and Melissa Teehan for dismissal of the complaint against them is granted; and it is
ORDERED that the motion by plaintiff Denise Mahoney for dismissal of the counterclaims against her is granted; and it is
ORDERED that the motion by third-party defendant Tracy Malone for dismissal of the third-party complaint against her is granted.
This action arose out of a verbal altercation that occurred between plaintiff Denise Mahoney and her neighbors on August 28, 206.. The altercation allegedly began after defendant Terry Mayowski looked through the window of his home and spotted Mahoney standing in her front yard across the street waiving her finger and shouting obscenities at him. After observing Mahoney, Mayowski walked into his front yard to confront her. Defendant Melissa Teehan, Mayowski's girlfriend, joined Mayowski shortly after she overheard the shouting and began arguing with Mahoney. As the ensuing verbal confrontation ensued, Mahoney allegedly threatened to assault the couple. Teehan, allegedly feeling threatened, returned into her home and called the police. Teehan and Mayowski made a statement to the police after they arrived and Mahoney allegedly was arrested and charged with harassment. Teehan also obtained an ex-parte order of protection against Mahoney, causing the police to take possession of her firearm. The Suffolk County District Attorney's Office initiated a criminal action against Mahoney, and a hearing was held on May 5, 2017. In addition to Mayowski and Teehan, defendant/third-party plaintiff William Weigelt, another of Mahoney's neighbors, appeared and testified against her. During an adjournment of the trial, Weigelt, having learned that a video of the altercation existed, returned to the Suffolk County District Attorney's Office where he revealed that some of his previous testimony was untruthful or inaccurate. As a result, the Suffolk County District Attorney's Office moved to dismiss the criminal complaint against Mahoney and the order of protection against her was vacated. Following dismissal of the complain,, Mahoney commenced the instant action asserting causes of action against defendants based on false arrest, malicious prosecution, defamation, the infliction of emotional distress, and abuse of legal process. The defendants joined issue denying Mahoney's claims and asserting affirmative defenses. However, Weigelt, whose answer recites protracted acrimonious relations between himself, Mahoney, and her wife, Tracy Malone, asserted counterclaims against Mahoney for infliction of emotional distress, abuse of process, and defamation. Weigelt also impleaded Tracy Malone, asserting defamation and the intentional and negligent infliction of emotion distress against her. In response, Tracy Malone joined the third-party action denying all of Weigelt's claims. The note of issue was filed on October 25, 209..
Weigelt now moves, pursuant to CPLR 3211 (a) (7) and 3212, for dismissal of the complaint against him. Weigelt asserts that the false arrest and malicious prosecution claims against him fail as a matter of law, as he played no role in instigating the action against plaintiff, he was merely one of three testifying witnesses, the action was not terminated in Mahoney's favor, and probable cause existed for her prosecution. Weigelt argues that the defamation claims against him must likewise be dismissed, because with the exception of his testimony at trial, Mahoney failed to sufficiently allege time, manner, and persons to whom Weigelt made defamatory statements against her. Weigelt also requests dismissal of the claims against him for intentional and negligent infliction of emotional distress on the basis he did not engage in either extreme or outrageous conduct toward Mahoney, and that his conduct at trial was not the proximate cause of any physical or emotional injury to her. Teehan and Mayowski seek dismissal of Mahoney's claims on similar bases, arguing, inter alia, that they merely furnished information to the responding police officers who utilized their own judgment in determining that probable cause existed for the arrest of Mahoney, that the alleged defamatory statements were truthful and made during trial, and that they did not engage in any conduct so outrageous that it was either injurious to Mahoney's physical or emotional well being.
Mahoney and Malone, by way of separate motions, move for dismissal of the counterclaims and third-party claims against them. Mahoney contends that she did not engage in any extreme outrageous conduct that her conduct did not cause Weigelt economic or emotional injury, and that the complaints and notices she made concerning Weigelt's behavior as a neighbor, or the conditions at his residence, were made for legitimate purposes. Mahoney asserts that the statements and letters she published concerning Weigelt's behavior as a neighbor are protected by truth, qualified privilege, and did not involve allegation of crimes so serious that they rise to the level of defamation per se. Malone makes similar arguments in support of her motion to dismiss the third-party complaint against her.
On a motion pursuant to CPLR 3211 (a) (7), the court must afford the pleading a liberal construction accept all the facts pleaded in the complaint as true, accord the plaintiff the benefit of every possible inference and determine only whether the facts, as alleged, fit within any cognizable legal theory (see Leon v Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972 [1994]; Hynes v Griebel, 300 A.D.2d 628, 754 N.Y.S.2d 293 [2d Dept 20021; Glassman v Zoret, 291 A.D.2d 430, 737 N.Y.S.2d 537 [2d Dept 2001]). The criterion is whether the plaintiff has a cause of action, not whether he or she has stated one (see Vorel v NBA Props., 285 A.D.2d 641, 728 N.Y.S.2d 397 [2d Dept 2001]). In contrast, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law tendering sufficient evidence to eliminate any material issues of fact from the case (see Alvarez v Prospect Hotp 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 487 N.Y.S.2d 316 (1985]). The failure to make such showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp,, 68 N.Y.2d 320 508 N.Y.S.2d 923; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 925 [1980]).
T~ establish a claim for abuse of process, a plaintiff must prove three essential elements, to wit, regularly-Issued process either civil or criminal, an intent to do harm without excuse or justification, and the use of process in a perverted manner to obtain a collateral objective (see Curiano v Suozzi,, 63 N.Y.2d 113, 480 N.Y.S.2d 466 [1984]; Marks v Marks, 113 A.D.2d 744, 493 N.Y.S.2d 206 [2d Dept 1985]). However, where the complaint fails to allege some irregular activity in the use of judicial process for a purpose not sanctioned by law, or that the process unlawfully interfered with the plaintiffs property, an action to recover damages based upon the alleged abuse of process must fail (see Curiano v Suozzi, supra; Williams v Williams, 23 N.Y.2d 592, 596, 298 N.Y.S.2d 473 [1969]; Mago LLC v Singh, 47 A.D.3d 772, 851 N.Y.S.2d 593 [2d Dept 2008]; Panish v Steinberg, 32 A.D.3d 383 819 N.Y.S.2d 549 [2d Dept 2006]; Reisman v Kerry Lutz, PC, 6 A.D.3d 418, 774 N.Y.S.2d 345 [2d Dept 2004]). As for the claims predicated on false arrest, "a civilian complainant,, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held...
To continue reading
Request your trial