Torpey v. Biagini

• Decision Date: 05 March 2020
• Docket Number: Index No. EF006781-2019
• Citation: 2020 NY Slip Op 31878 (U)
• Parties: PATRICK J. TORPEY and 20th CENTURY TOWING, Plaintiffs, v. EDWARD J. BIAGINI, Defendant.
• Court: New York Supreme Court

2020 NY Slip Op 31878(U)

PATRICK J. TORPEY and 20^th CENTURY TOWING, Plaintiffs,
v.
EDWARD J. BIAGINI, Defendant.

Index No. EF006781-2019

SUPREME COURT-STATE OF NEW YORK IAS PART-ORANGE COUNTY

March 5, 2020

NYSCEF DOC. NO. 23

Present: HON. CATHERINE M. BARTLETT, A.J.S.C.

To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.

Motion Date: March 3, 2020

The following papers numbered 1 to 6 were read on Defendant's motion to dismiss the Complaint pursuant to CPLR §3211(a)(5, 7):

Notice of Motion - Affidavit - Affirmation / Exhibits	1-2
Memorandum in Opposition	3
Reply Memorandum	4
Supplemental Brief (Plaintiffs)	5
Supplemental Memorandum (Defendant)	6

Upon the foregoing papers it is ORDERED that the motion is disposed of as follows:

Plaintiffs Patrick J. Torpey and 20^th Century Towing commenced this action on August 26, 2019, asserting causes of action for abuse of process, malicious prosecution and prima facie tort against defendant Edward J. Biagini.

Page 2

A. Plaintiff's Complaint

The pertinent factual allegations of the Complaint are as follows:

13. At some time prior to June 7, 1997, Defendant Biagini was the titled owner of a 1986 International Dump Truck...

14. On or about June 7, 1997, Biagini transferred and conveyed title to the Truck to Torpey as an inter vivos gift. In connection with Biagini's transfer of the Truck, he executed the certificate of title representing the transfer of its ownership to Torpey. Biagini also transferred the bill of sale to Torpey.
....
17. In or around the fall of 2015, Torpey began a romantic relationship with Biagini's adult daughter, Lori McManus...

18. On information and belief, in the fall of 2015, Biagini learned of the relationship, much to his dismay. On or about November 22, 2015, Biagini texted McManus and said "[t]omorrow I will find your boy friend (Torpey) and put him in the ground. You have a nice life."

19. Thereafter, on information and belief, Biagini provided false information to the New York State Department of Motor Vehicles in order to have the DMV re-issue a new title to the Vehicle in Biagini's name. After receiving the new title from the DMV, Biagini registered the Vehicle with the DMV under his name. Biagini did all of this despite knowing that Torpey was the rightful owner of the Truck, and that he possessed the Truck along with the original title that Biagini transferred in 1997.
....
21. ...Biagini contacted the Town Police Department and falsely reported the Truck as stolen. On information and belief, Biagini falsely told the Town Police Department that he owned the Truck, that Torpey stole the Vehicle from him, and that it should be confiscated from Torpey's property and returned to Biagini. Based on the information Biagini provided, the Town Police Department arrived at Torpey's residence, seized the Vehicle, and impounded it.
....
24. From December 22, 2015 through March 18, 2016, the Town Police Department repeatedly refused to release the Vehicle back into Torpey's custody and stonewalled Torpey's many requests seeking information.
....
27. ...on or about March 18, 2016, the Town Police Department released the Vehicle into Biagini's custody. On information and belief, Biagini had a very close personal relationship with certain Town public officials, including the Town Attorney, Mike Blythe, and was able to leverage those relationships to induce the Town Police Department to release the Truck into his custody....
....

Page 3

29. On or about April 7, 2016, Torpey filed a Complaint against Biagini in the Supreme Court...asserting causes of action under conversion and replevin....

30. On or about May 6, 2016, Biagini filed a counterclaim against Torpey seeking $10,000 in damages....On information and belief, Biagini asserted the counterclaim despite knowing that the Truck belonged to Torpey.

31. On August 23, 2016, the Court issued an order directing Biagini not to sell, transfer, assign or otherwise dispose of the Truck during the Action.
....
33. Following nearly two-and-a-half years of litigation, on or about September 4, 2018, the Court issued an order finding "that [Biagini] had gifted the vehicle to [Torpey, and] it is without question that [Torpey] has a superior right to possession of the truck." The Court ordered that Biagini, within 10 days, release the Truck to Torpey's custody.

Based on the foregoing allegations, Plaintiff alleged causes of action for abuse of process, malicious prosecution and prima facie tort. Defendant moves for dismissal pursuant to CPLR §3211(a)(5, 7), asserting that the claims for abuse of process and prima facie tort are barred by the statute of limitations, and that all three claims fail to state a valid cause of action.

B. The Claim For Abuse of Process Is Barred By The Statute of Limitations

"Abuse 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 NY2d 113, 116 (1984); Goldman v. Citicore I, LLC, 149 AD3d 1042, 1044 (2d Dept. 2017). Plaintiff herein alleges that Defendant committed abuse of process not only by providing false information and a fabricated title and registration to the New Windsor Police, thereby facilitating the seizure and impoundment of Plaintiff's vehicle, but also by filing a baseless counterclaim in Plaintiff's ensuing replevin action.

Page 4

However, in Curiano v. Suozzi, the Court of Appeals held that "the institution of a civil action by summons and complaint is not legally considered process capable of being abused." Id., 63 NY2d at 116. See, Goldman v. Citicore I, LLC, supra, 149 AD3d at 1044-45; Muro-Light v. Farley, 95 AD3d 846, 847 (2d Dept. 2012). See also, McMahan v. McMahan, 164 AD3d 1486, 1488 (2d Dept. 2018) ("frivolous litigation requiring a party to spend legal fees" does not constitute abuse of process). Perforce, the mere assertion of a counterclaim for monetary damages in Plaintiff's replevin action cannot by itself constitute an actionable abuse of process by Defendant, and Defendant employed no incidental process in the replevin action to restrain the Vehicle. Hence, the sole valid predicate for Plaintiff's claim of abuse of process is the allegation that Defendant induced the Police' seizure and impoundment of the Vehicle in order to obtain possession of a vehicle which he knew rightfully belonged to Plaintiff.

Abuse of process is an intentional tort subject pursuant to CPLR §215 to a one-year statute of limitations. See, e.g., Bittner v. Cummings, 188 AD2d 504, 506 (2d Dept. 1992); 10 Ellicott Square Court Corp. v. Violet Realty, Inc...