Susser v. Fried

• Decision Date: 20 September 1982
• Parties: Robert SUSSER, Plaintiff, v. Alexander FRIED, Defendant.
• Court: New York City Court

Page 930

455 N.Y.S.2d 930

115 Misc.2d 968

Robert SUSSER, Plaintiff, v. Alexander FRIED, Defendant.

Civil Court of the City of New York,

Special Term, New York County,

Part I.

Sept. 20, 1982.

Lerner, Walker, Levy & Cohen, New York City, for plaintiff.

Martin S. Streit, New York City, for defendant.

MARA T. THORPE, Judge.

In this case of apparent first impression, the court is called upon to decide two issues arising out of proceedings in the Summons Part of the New York City Criminal Court. The action has been denominated by plaintiff in his note of issue as one for abuse of process, and defendant has now moved to dismiss the complaint pursuant to CPLR 3211, subd. par. 7 for failure to state a cause of action. The motion raises the issue of whether a "Request to Appear" in a Summons Part is process for purposes of the tort of abuse of process and, if not, whether it constitutes the commencement of a criminal proceeding for purposes of the tort of malicious prosecution.

In deciding this motion, the court assumes, as it must, the truth of the allegations in the complaint and accords them every reasonable inference. (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970; Board of Educ. v. Farmingdale Classro Teachers Assn., Local 1889, AFT AFL-CIO, 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278.)

The complaint alleges that on eight separate occasions between June, 1972 and June, 1977, defendant appeared before the clerk of the New York City Criminal Court and falsely stated that plaintiff had denied defendant, his landlord, access to plaintiff's apartment, a violation of section D26-10.07 of the New York City Administrative Code and a misdemeanor ¹. The complaint further alleges that on each of these occasions, as a result of defendant's false statements, a Request to Appear ² was issued and served upon plaintiff. Plaintiff appeared each time in response to said requests and each time the complaint was dismissed, three of those dismissals being based on the instant defendant's failure to appear. Plaintiff contends that none of these actions was based on probable cause and that each was instituted by defendant with malice and solely to cause plaintiff anxiety, embarrassment and expense and to deter him from enforcing his legal rights as a tenant. For a second cause of action, plaintiff alleges that on one occasion, the request to appear was exhibited to his colleagues at his place of employment and on another occasion it was posted in the public elevator of his building, thus causing him humiliation before his fellow employees and tenants. The complaint alleges that all of the foregoing acts constitute a perversion of the purposes of the Criminal Court.

Abuse of process has been broadly defined by the Court of Appeals as "the misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process." (Board of Educ. v. Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 N.Y.2d 397, 400, 380 N.Y.S.2d 635, 343 N.E.2d 278.) The three essential elements of the tort are: (1) regularly issued process; (2) a motivation to do harm without economic or social excuse or justification; and (3) the seeking of "some collateral advantage or corresponding detriment to the plaintiff which is outside the legitimate ends of the process" such as extortion, blackmail or retribution. The complaint adequately alleges the latter two elements. The issue is whether the requests to appear constitute process. Analysis of this issue must begin with a brief review of Summons Part proceedings.

Although there is no statutory authority for the proceedings in the Summons Part of the New York City Criminal Court (People v. Vlasto, 78 Misc.2d 419, 355 N.Y.S.2d 983; People v. Birnberg, 112 Misc.2d 870, 447 N.Y.S.2d 597), private parties have historically been permitted to initiate prosecutions of petty offenses in those parts by virtue of the sanction of long tradition (People v. Vlasto, supra; People v. Citadel Mgt. Co., 78 Misc.2d 626, 355 N.Y.S.2d 976, revd on other grounds 80 Misc.2d 668, 365 N.Y.S.2d 121).

To initiate the proceeding, the complainant obtains from a designated court clerk a request to appear. This document, which has "all the appearance of a summons," but no statutory authority for its issuance (People v. Vlasto, supra, p. 425, 355 N.Y.S.2d 983), contains the name of the person to whom it is directed and that of the complainant, the offense alleged to have been committed, the return date, and the admonition "if you fail to appear * * * a criminal action against you may be commenced without your first having an opportunity to be heard."

On the return date, the matter appears on the calendar of the Summons Part, and upon the appearance of the complainant and the party who has been requested to appear, or when the complainant has appeared alone on two occasions, a Criminal Court Judge decides whether to authorize the filing of a complaint or to dismiss the matter. (People v. Vlasto, supra.) The discretion exercised by the Judge in this regard is subject to appellate review. (See People v. Burgos, NYLJ, Sept. 2, 1980, p. 5, col. 1; People v. Kissling, App.Term, 1st Dept., Docket No. 48206/81, July 7, 1981.)

Process is a " ' "direction or demand that the person to whom it is directed has to perform or refrain from the doing of some prescribed act" ' " (Julian J. Studley, Inc. v. Lefrak, 41 N.Y.2d 881, 884, 393 N.Y.S.2d 980, 362 N.E.2d 611; Williams v. Williams, 23 N.Y.2d 592, 298 N.Y.S.2d 473.) In New York State criminal proceedings, process takes the form of a summons, warrant of arrest or bench warrant, none of which may be issued prior to the filing of an accusatory instrument. (See CPL 130.10, 120.10, 1.20, subd. 3; 530.70). It may also take the form of an appearance ticket, authorized by CPL article 150. Since response to an appearance ticket issued for the alleged commission of a misdemeanor is obligatory, failure to appear in response thereto being punishable as a violation under section 215.58 of the Penal Law, it has been stated that an appearance ticket "may be deemed a process". (Farkas v. State of New York, 96 Misc.2d 784, 787 n. 3, 409 N.Y.S.2d 696; see Rosario v. Amalgamated Ladies Garment Cutters' Union, Local 10, I.L.G.W.U., 2 Cir., 605 F.2d 1228, cert. den. 446 U.S. 919, 100 S.Ct. 1853, 64 L.Ed.2d 273; but see McClellan v. New York City Tr. Auth., 111 Misc.2d 735, 444 N.Y.S.2d 985.)

A request to appear differs from these forms of process in that by its very language it invites rather than demands the appearance in court of the person to whom it is addressed. Moreover, there is no penalty or other coercive action which can be taken for failure to appear in response to it unless and until an accusatory instrument is actually filed at the court's direction, after the testimony of the complainant has been taken.

The request to appear is most analogous to the "summons" or "ticket" which was in use prior to the enactment of CPL article 150 authorizing the use of the appearance ticket in specified situations. As in the case of the request to appear, there was no statutory sanction for the issuance of a summons or ticket (Farkas v. State of New York, supra; Mormon v. Baran, Sup., 35 N.Y.S.2d 906), and no penalty followed upon the mere failure to appear by the person summoned (People v. Boback, 23 N.Y.2d 189, 295 N.Y.S.2d 912, 243 N.E.2d 135; Mormon v. Baran, supra ). Presentation to the court of either testimony or affidavits establishing probable cause was required before the recipient could be deprived of his liberty. (People v. Boback, supra.) For these reasons, a summons or ticket was not considered process (Farkas v. State of New York, supra; Mormon v. Baran, supra ), but rather a mere invitation to appear and notice that the recipient would be charged with an offense on a specified future date (Farkas v. State of New York, supra; Matter of Coville v. Bennett, 57 Misc.2d 838, 293 N.Y.S.2d 685; Mormon v. Baran, supra ).

In light of the foregoing, the court concludes that the request to appear is not a process, but merely an invitation, and that therefore, the complaint does not state a cause of action for abuse of process.

Plaintiff argues in his papers in opposition to the motion to dismiss that the complaint also states a cause of action for harassment. However, as defendant correctly argues, there is no cause of action for harassment. (Ornstein Enterprises v. Wolf, NYLJ, March 10, 1980, p. 12, col. 1, App.Term, 1st Dept.), and the complaint cannot withstand the motion to dismiss on that basis.

However, it is settled law that if the factual allegations in a pleading "manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). For the reasons which follow, the court finds that the complaint does state a cause of action for malicious prosecution and should not be dismissed merely because plaintiff has...