Opinion
10255 10255A 10255 B10255C Index 153314/12
10-31-2019
Fausto DEJESUS, Plaintiff–Respondent, v. Tatiana MOSHIASHVILI, et al., Defendants–Appellants. [And Other Actions]
Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola (John J. Nicolini of counsel), for appellants. Sivin & Miller, LLP, New York (Andrew C. Weiss of counsel), for respondent.
Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola (John J. Nicolini of counsel), for appellants.
Sivin & Miller, LLP, New York (Andrew C. Weiss of counsel), for respondent.
Friedman, J.P., Kapnick, Kern, Singh, JJ.
Judgment, Supreme Court, New York County (Gerald Lebovits, J.), entered July 31, 2018, upon a jury verdict, awarding damages to plaintiff, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered July 17, 2018, which denied defendants' motions pursuant to CPLR 4401 and 4404(a) to dismiss the complaint or set aside the verdict, and order, same court (Arlene P. Bluth, J.), entered April 14, 2017, to the extent it denied defendants' motion for summary judgment dismissing the complaint in its entirety as against defendant Michael Moshiashvili (Michael), unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Purported appeal from the jury verdict unanimously dismissed, without costs, as taken from a nonappealable paper.
Supreme Court correctly declined to dismiss the malicious prosecution and abuse of process claims against Michael, either at the summary judgment stage or at trial. A genuine issue of material fact existed for resolution by a jury as to whether Michael, despite believing that defendant Tatiana Moshiashvili's (Tatiana) allegations were false, not only maliciously withheld critical evidence but actively encouraged the prosecution of plaintiff (see Brown v. Sears Roebuck & Co., 297 A.D.2d 205, 210, 746 N.Y.S.2d 141 [1st Dept. 2002] ; Lupski v. County of Nassau, 32 A.D.3d 997, 998, 822 N.Y.S.2d 112 [2d Dept. 2006] ; Mesiti v. Wegman, 307 A.D.2d 339, 341, 763 N.Y.S.2d 67 [2d Dept. 2003] ). A genuine issue of material fact also existed as to Michael's role in the prosecution of plaintiff and whether he perverted the process with intent to do harm without excuse or justification to achieve a collateral objective (see generally Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324 [1984] ).
The court properly admitted into evidence, over defendants' objection, incident reports and testimony of defendants' former neighbor under the motive and intent exceptions of People v. Molineux, 168 N.Y. 264, 294–300, 61 N.E. 286 [1901]. Each of the incident reports was either directly relevant to this action or was also properly admitted pursuant to the common plan or scheme exception under Molineux, 168 N.Y. at 305–313, 61 N.E. 286.
We find that the damages awards are not excessive.