Wednesday, February 17, 2016

Lawsuit brought seeking to remove an elected official from office leads to counter claims alleging slander, defamation, abuse of process and malicious prosecution


Lawsuit brought seeking to remove an elected official from office leads to counter claims alleging slander, defamation, abuse of process and malicious prosecution
Reszka v Collins, 2016 NY Slip Op 00807, Appellate Division, Fourth Department

Elizabeth Reszka initiated a lawsuit in which she sought a court order removing Councilman Joseph A. Collins from his position as a council member of the Town Board of the Town of Hamburg. While the matter was pending in the Appellate Division, Collins filed an amended answer in the original action and asserted two counterclaims. When the Appellate Division dismissed Reszka’s petition in the original proceeding, she asked Supreme Court to dismiss Collins' two counterclaims.

Collins' first counterclaim alleged Reszka held a press conference regarding the lawsuit, and further alleged that Reszka "made slanderous and defamatory and libelous statements intentionally, willfully and maliciously" attacking him in his individual and professional capacity. Collins’ second counterclaim alleged malicious prosecution and abuse of process. Supreme Court dismissed Reszka’s motion to have both counterclaims dismissed.

In response to Reszka’s appeal challenging Supreme Court’s denial of her motion to dismiss both counter claims, the Appellate Division, noting that although Civil Rights Law §74* provides that “statements made in the course of judicial proceedings are protected by absolute privilege provided that they are material and pertinent to the issue to be resolved in the proceeding, explained that a party cannot maliciously commence a judicial proceeding alleging false and defamatory charges and then circulate a press release based on the same charges and escape liability by invoking §74 of the Civil Rights Law.

The Appellate Division ruled that Collins’ first counterclaim “adequately states that [Reszka’s] action was without any basis in fact and was commenced solely to defame [Collins] as well as also alleging that Reszka acted with actual malice, a required element for a defamation claim brought by a public official. Under the circumstances the Appellate Division concluded that Supreme Court properly refused to dismiss Collins' first counterclaim.

As to Collins' second counterclaim alleging malicious prosecution, the Appellate Division said that where the underlying action is civil in nature, “the party alleging a claim for malicious prosecution must allege a special injury.” Finding that Collins "fail[ed] to plead that the civil proceeding involved wrongful interference with [his] person or property," the Appellate Division held that Supreme Court should have granted Reszka’s motion to dismiss Collins’ second counterclaim. The court observed that instead of alleging “a special injury,” Collins alleged damages amounting to "the physical, psychological or financial demands of defending a lawsuit," which claims are insufficient to constitute “a special injury for a claim of malicious prosecution.”

The court also ruled that to the extent Collins’ second counterclaim alleged abuse of process and not malicious prosecution, it must still be dismissed as well. "Insofar as the only process issued [here] was a summons necessary to initiate Reszka’s lawsuit."

Accordingly, said the court, “there was no unlawful interference with [Collins’] person or property because the institution of a civil action by summons and complaint is not legally considered process capable of being abused." Although Collins claimed that Reszka acted maliciously in bringing the action, the Appellate Division said that "[a] malicious motive alone . . . does not give rise to a cause of action for abuse of process."

* §74 of the Civil Rights Law, privileges in action for libel, provides “A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published. This section does not apply to a libel contained in any other matter added by any person concerned in the publication; or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

Caution:

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.