Regan v. Coldwell Banker Residential Real Estate Services, Inc.

• Decision Date: 21 October 1991
• Citation: 176 A.D.2d 864,575 N.Y.S.2d 887
• Parties: Edward J. REGAN, etc., et al., Appellants, v. COLDWELL BANKER RESIDENTIAL REAL ESTATE SERVICES, INC., et al., Defendants, Sears, Roebuck & Company, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 887

575 N.Y.S.2d 887

176 A.D.2d 864

Edward J. REGAN, etc., et al., Appellants, v. COLDWELL BANKER RESIDENTIAL REAL ESTATE SERVICES, INC., et al., Defendants Sears, Roebuck & Company, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Oct. 21, 1991.

Regan & Regan, South Setauket (Marylou B. Regan, of counsel), for appellants.

Robert E. Baum, P.C., Williston Park, for respondent Sears, Roebuck & Co.

Newman Schlau Fitch Burns & Lane, P.C., Mineola (Carole A. Burns, of counsel), for respondents Bartol, Murphy, and Murphy & Bartol.

Before HARWOOD, J.P., and EIBER, BALLETTA and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages, inter alia, for libel, the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Gowan, J.), entered January 18, 1990, which upon granting the separate motions of the defendants Sears, Roebuck & Company, Ernest T. Bartol, Patrick M. Murphy, Jr., and Murphy & Bartol, for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, dismissed the complaint and all cross claims insofar as asserted against those defendants.

ORDERED that upon searching the record, the judgment is modified, on the law, by adding thereto a provision granting summary judgment dismissing the complaint insofar as it is asserted against the defendants Coldwell Banker Residential Real Estate Services, Inc. and James Frayne; as so modified, the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The present action stems from a prior action brought by the defendant Coldwell Banker Residential Real Estate Services, Inc. (hereinafter Coldwell Banker) to recover a real estate brokerage commission from the plaintiffs' client Ronald Eustice. Eustice interposed counterclaims against Coldwell Banker, which thereafter commenced a third-party action against the plaintiffs seeking contribution. Coldwell Banker subsequently moved to amend and supplement its complaint to assert causes of action against the plaintiffs for, among other things, defamation. Coldwell Banker's motion to amend and supplement its complaint was supported by the affidavit of James Frayne, the attorney who had represented the purchasers of Ronald Eustice's house at the closing. In his affidavit, Frayne recounted statements allegedly made by the plaintiff Edward J. Regan, the attorney who represented Eustice at the aforementioned closing. The Supreme Court denied Coldwell Banker's motion to amend and supplement its complaint, and its third-party action against the plaintiffs was ultimately dismissed by this court (see, Coldwell Banker Real Estate Servs. v. Eustice, 145 A.D.2d 460, 535 N.Y.S.2d 102). The plaintiffs then commenced this action alleging defamation, abuse of process, malicious prosecution, and conspiracy. The Supreme Court granted the summary judgment motions of the defendants Sears, Roebuck & Company, Ernest T. Bartol, Patrick M. Murphy, Jr., and the law firm of Murphy & Bartol and dismissed the complaint and all cross claims with respect to those defendants. The plaintiffs now appeal. We affirm, and in so doing take this opportunity to exercise our power to search the record and dismiss the complaint as to the remaining defendants Coldwell Banker and James Frayne (see, CPLR 3212[b]; Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 472 N.Y.S.2d 592, 460 N.E.2d...