Palmieri v. Perry

• Decision Date: 08 December 2021
• Docket Number: 2018-05017,Index No. 18431/15
• Citation: 2021 NY Slip Op 06852
• Court: New York Supreme Court
• Parties: Paul Palmieri, appellant, v. Perry, Van Etten, Rozanski & Primavera, LLP, et al., respondents.

2021 NY Slip Op 06852

Paul Palmieri, appellant, v. Perry, Van Etten, Rozanski & Primavera, LLP, et al., Respondents.

No. 2018-05017

Index No. 18431/15

Supreme Court of New York, Second Department

December 8, 2021

Argued - October 5, 2021

D67800 T/htr

Judith N. Berger, Babylon, NY, for appellant.

Rivkin Radler LLP, Uniondale, NY (Cheryl F. Korman and Merril S Biscone of counsel), for respondents.

CHERYL E. CHAMBERS, J.P. SYLVIA O. HINDS-RADIX BETSY BARROS VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for abuse of process the plaintiff appeals from a judgment of the Supreme Court Suffolk County (David T. Reilly, J.), entered February 22 2018. The judgment, upon an order of the same court dated December 7, 2017, granting the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint, is in favor of the defendants and against the plaintiff dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

Initially, we note that the plaintiff failed to perfect an appeal from an order dated December 7, 2017, which granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint. On this appeal from a judgment entered on that order, the plaintiff argues that the Supreme Court improperly granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint. As a general rule, we do not consider any issue raised on a subsequent appeal that could have been raised in an earlier appeal that was dismissed for lack of prosecution, although this Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 N.Y.2d 750; Bray v Cox, 38 N.Y.2d 350; Green Tree Credit, LLC v Jelks, 120 A.D.3d 1299, 1300). However, since the right of direct appeal from an order terminates once judgment has been entered (see Matter of Aho, 39 N.Y.2d 241), and since the plaintiff timely appealed from the judgment before his appeal from the order was deemed dismissed for failure to prosecute, we exercise our jurisdiction to entertain this appeal from the judgment.

In a prior lawsuit, the plaintiff sought to recover damages against the Town of Babylon based upon unlawful entry on his property by various individuals using a public access way from a public road. That prior lawsuit was settled by a stipulation in which the Town agreed, inter alia, to erect a fence, then litigation ensued regarding the Town's failure to erect the fence. Thereafter, the plaintiff commenced this action against the defendants, who were the attorneys representing the Town in the prior proceedings. The plaintiff alleges, among other things, that the defendants intentionally deprived him of his right to have the fence erected in a timely manner, and that they conspired using fraud and deceit to prevent the installation of the fence. The complaint purports to assert causes of action alleging, inter alia, abuse of process, conspiracy, fraud/collusion, respondeat superior, violation of Judiciary Law § 487, tortious interference with contract, trespass, and conversion. In an order dated December 7, 2017, the Supreme Court granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint. A judgment entered upon the order on February 22, 2018, is in favor of the defendants and against the plaintiff dismissing the complaint. The plaintiff appeals.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must accept as true the facts as alleged in the pleading and submissions in opposition to the motion, accord the plaintiff the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory (see Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 N.Y.3d 59, 63-64).

"Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to harm without excuse or justification, and (3) use of process in a perverted manner to obtain a collateral objective" (Panish v Steinberg, 32 A.D.3d 383, 383). "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, 596 [internal quotation marks omitted]; see Curiano v Suozzi, 63 N.Y.2d 113, 117). Here, the plaintiff failed to allege the essential element of regularly issued civil or criminal process (see Williams v Williams, 23 N.Y.2d at 596), and, therefore, failed to state a cause of action alleging abuse of process.

Pursuant to Judiciary Law § 487, an attorney who "[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action." In order to establish liability under section 487, the plaintiff must show that the defendant acted with intent to deceive him or her or the court (see Gillen v McCarron, 126 A.D.3d 670, 671; Cullin v Spiess, 122 A.D.3d 792, 793; Dupree v Voorhees, 102 A.D.3d 912, 913). "Allegations regarding an act of deceit or intent to deceive must be stated with particularity" (Bill Birds, Inc. v Stein Law Firm, P.C., 164 A.D.3d 635, 637, affd 35 N.Y.3d 173). Here, the plaintiff's conclusory allegations were insufficient to state a cause of action alleging violation of Judiciary Law § 487 (see Klein v Rieff, 135 A.D.3d 910, 912; Schiller v Bender, Burrows &...