Opinion
40784/09.
Decided February 24, 2010.
Leventhal Sliney, LLP, Roslyn, NY, Atty. for Plaintiff.
SC Superior Off. Assn., SC Detectives Assn., Gilmore, Faraone, Early, Fitzgerald Morris, Louis J. Petrizzo Assoc.,, Babylon, NY, Atty. for Defs.
ORDERED that the plaintiff's motion (# 002) for a preliminary injunction restraining the defendants from altering, revising, erasing, deleting or otherwise destroying documents or electronic files within the possession, custody and control of the defendants relating to the contentions of the parties in this tort action without making a proper back up and from selling or transferring any computers or electronic equipment that contain files is denied; and it is further,
ORDERED that the cross motion (# 003) by defendants Frayler and the Suffolk County Police Benevolent Association, Inc. (hereinafter PBA defendants) and the separate cross motion (# 004) by the Detective-Superior Officers defendants (hereinafter DSO defendants) are considered under CPLR 3211(a) and are denied; and it is further,
ORDERED that a preliminary conference shall be held herein at 9:30 a.m. on Friday, April 9, 2010 in the courtroom of the undersigned located in the Supreme Court Annex Building of the Courthouse Complex at One Court Street, Riverhead, New York 11901, at which counsel are directed to appear.
The plaintiffs commenced this action to recover damages sustained as a result of the defendants' purportedly tortious conduct which was aimed at taking over the Conservative Party in Suffolk County. The plaintiff's allege that in 2008, the defendants engaged in a scheme to mass enroll as Conservatives thousands of voters few, if any, who were in sympathy with the principles of such party.
The facts underlying these claims were at the center of a prior Election Law proceeding brought by the plaintiffs in August of 2009 pursuant to Election Law § 16-110. Therein, the plaintiffs sought the judicial removal of most of those who enrolled in the Conservative Party by reason of the efforts of the defendant police organizations. By an order and judgment issued by this court in that proceeding, the court confirmed the findings of the party's Chairman that most of the voters who enrolled in the Conservative Party at the urging and assistance of the defendants were not in sympathy with the principles of such party. All such persons were removed from the party by the judgment of this court.
The claims interposed by the plaintiffs in this action sound exclusively in prima facie tort.
By their original complaint, the plaintiffs alleged that the defendants intentionally inflicted harm on the Conservative Party that resulted in direct and measurable money damages, namely, the costs associated with bringing the prior election law proceeding, including the holding of the hundreds of hearings before the plaintiff Committee to ascertain whether any of the new enrollees were in sympathy with the principles of the Conservative Party. The plaintiffs further alleged that the defendants acted without excuse or justification in their attempt to raid the Conservative party by securing the mass enrollment of voters into the Conservative Party, who were not in sympathy with Conservative Party principles, all of which acts and conduct on the part of defendants' were not unlawful.
Immediately following the commencement of this action, the plaintiffs moved for preliminary injunctive relief all which is aimed at preserving evidence in the nature of e-mails and other electronic files in the exclusive control of the defendants. However, the record reflects that the plaintiffs' motion for preliminary injunctive relief was rendered academic by the plaintiffs' service of a "First Demand for Inspection of Electronic Data and for Preservation of Electronically Stored Information". Under these circumstances, and in light of the fact that the preservation of evidence is not the proper subject of a motion for preliminary injunctive relief in a tort action such as the instant one, the plaintiffs' motion (# 002) for such relief is denied ( see CPLR 6301).
Pursuant to CPLR 6301, a preliminary injunction may be granted only in the following actions: 1) in an action where it appears that a defendant threatens, or is about to do, or is doing, or procuring to be done, an act in violation of the plaintiff's rights, respecting the subject of the action, which is likely to render the judgment ineffective; or 2) in an action for permanent injunctive relief to restrain the defendant, during the pendency of said action, from doing that which the plaintiff seeks to enjoin permanently, by the final judgment.
The court thus lifts and vacates the temporary stay conferred in the October 30, 2010 Order to Show Cause (Kent, J.), which was thereafter extended by this court at oral argument. In the event that the evidence described in the plaintiffs' First Demand for Inspection of Electronic Data and for Preservation of Electronically Stored Information is lost, eradicated or otherwise becomes unavailable as a result of actionable conduct on the part of the defendants or their agents, the plaintiffs may resort to any and all remedies afforded them under the law governing spoliation of evidence (see Awon v Harran Transp. Co., Inc , 69 AD3d 889, 2010 WL 323495 [2d Dept 1/26/10]). Consequently, the court declines the plaintiffs' invitation to "so-order" their First Demand for Inspection and Preservation.
Left for consideration are the two cross motions (# 003 # 004) by the defendants to dismiss the plaintiffs' complaint on the grounds of legal insufficiency. By their cross motion (# 003), the DSO defendants argue that the plaintiffs' original complaint was legally insufficient in that it failed to allege that the defendants' actions were motivated solely by "disinterested malevolence" and that there was no economic or social justification for the actions of the defendants in this case. In response and prior to the interposition of any opposing papers, the plaintiffs served and filed an amended complaint containing such allegations. The cross motion (# 004) by the PBA defendants was interposed subsequent to service of the amended complaint and attacked the legal sufficiency thereof while the reply papers of the DSO defendants pressed their claims of legal insufficiency against the amended complaint. The court shall thus consider the legal sufficiency of the amended complaint, as it supplanted the original complaint and all parties have had time to direct their claims at the sufficiency of the amended complaint in their submissions to the court.
In their separate applications to dismiss the plaintiffs' amended complaint, the defendants contend that case law has imposed upon claimants seeking to recover damages under theories of prima facie tort the obligation of demonstrating not only the four basic elements of such tort, but also, the obligation of demonstrating that the defendants' conduct was solely motivated by "disinterested malevolence" and not by any other motivating factor. Support for this position of the defendants is found in the actions of the plaintiffs who amended their complaint "as of right" pursuant to CPLR 3025 so as to add allegations that the defendants' conduct was motivated solely by "disinterested malevolence".
Support for the position of the defendants regarding the disinterested malevolence requirement can also be found in appellate case authorities. In a recent case emanating from the Supreme Court, Appellate Division, Second Department entitled Epifani v Johnson , reported at 65 AD3d 224, 882 NYS2d 234 [June 23, 2009] the court stated as follows:
The elements of a cause of action alleging prima facie tort are:
(1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or a series of acts which would otherwise be lawful ( see Freihofer v Hearst , 65 NY2d 135, 142-143; Curiano v Suozzi , 63 NY2d 113, 117). To make out a claim sounding in prima facie tort, the plaintiff [must] allege that disinterested malevolence was the sole motivation for the conduct of which [he or she] complain[s]' ( R.I. Is. House, LLC v North Town Phase II , 51 AD3d 890 ).
The defendants further contend that while the amended complaint now supplies allegations of disinterested malevolence and thus may state a facially sufficient claim sounding in prima facie tort, the plaintiffs have no cause of action for such relief. In advancing such contentions, the defendants rely principally upon the following arguments: 1) that the amended complaint contains the same or similar purported admissions set forth in the original complaint which were predicated upon allegations that the defendants' conduct was motivated by factors other than "disinterested malevolence" including an intended defeat of the incumbent Sheriff whose was running for re-election in 2009; and 2) that this court, in its decision and judgment issued in the prior Election Law proceeding, found that the defendants' actions were motivated by factors other than "disinterested malevolence". The defendants thus urge this court to conclude that the plaintiffs' amended complaint remains facially insufficient or to find that the plaintiffs have no cognizable claims sounding in prima facie tort.
It is well established that in determining a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)[7], the court should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible inference, and determine only whether the facts alleged fit within any cognizable legal theory ( see Roth v R P Rest. Corp. , 68 AD3d 158, 891 NYS2d 158 [2d Dept 2009]). Where, however, evidentiary material is submitted on a motion to dismiss pursuant to CPLR 3211(a)[7], the inquiry is whether the plaintiff has a cause of action, not whether he or she has stated one ( see Shapiro v Jackel , 65 AD3d 578, 884 NYS2d 454 [2d Dept 2009]).
As indicated above, the plaintiffs' amended complaint contains allegations that the conduct on the part of the defendants, about which the plaintiffs complain, was motivated solely by disinterested malevolence. Since the plaintiffs' amended complaint otherwise contains allegations regarding the four other material elements of a claim sounding in prima facie tort, the defendants' claims that the plaintiffs' amended complaint fails to state a cause of action are without merit.
Also without merit are the defendants' claims that the plaintiffs have no cause of action sounding in prima facie tort because the amended complaint did not eradicate the factual assertions that the defendants' conduct was motivated by factors other than "disinterested malevolence" which were set forth in the original complaint. It is well established that factual statements contained in a verified complaint or made by a party as a witness or contained in a deposition, a bill of particulars or an affidavit merely constitute informal judicial admissions which may be admissible at trial under the admissions exception to the hearsay rule ( see Matter of Union Indem. Ins. Co. of New York , 89 NY2d 94, 651 NYS2d 383). Informal judicial admissions are not conclusive but may be considered as evidence of the facts asserted ( see Ocampo v Pagan , 68 AD3d 1077, 892 NYS2d 452 [2d Dept 2009]). Since informal judicial admissions have no preclusive effect upon the party making the admission, the circumstances in which they were made may be explained at trial ( see Baje Realty Corp. v Cutler , 32 AD3d 307 , 820 NYS2d 57 [2d Dept 2006]; Stauber v Brookhaven Natl. Lab , 256 AD2d 570, 683 NYS2d 569 [2d Dept 1998]; Bogoni v Frielander , 197 AD2d 281, 610 NYS2d 511 [1st Dept 1994]).
Upon application of the foregoing legal maxims to the facts adduced on the instant applications, the court finds that the factual averments contained in the plaintiffs' original and amended complaints, which the defendants contend contain factual admissions that the defendants' actions were motivated by factors other than "disinterested malevolence", are neither binding nor preclusive and may be explained at trial. They thus provide no basis for concluding that the plaintiffs have no cause of action sounding in prima facie tort ( see CPLR 3211(a)[7]).
The defendants' contentions that the decision and judgment issued by this court in the prior Election Law proceeding between the parties established that the plaintiffs have no legally sufficient claims sounding in prima facie tort are equally unavailing. Much of the language contained in the court's decision and order upon which the defendants rely is mere dicta. Indeed, the court specifically noted that there was no explanation offered at any time during the course of that Election
Law proceeding "as to the intention of the police unions and no denial of an attempted take over of the party." The defendants' reliance upon the court's prior determination to establish that the plaintiffs have no legally sufficient claims sounding in prima facie tort under principles of res judicata and/or collateral estoppel is misplaced.
The defendants' claims that the complaints served herein and/or the prior decision and judgment of the court constitute documentary evidence which disproves the newly asserted facts regarding disinterested malevolence that are contained in the plaintiffs' amended complaint are rejected as unmeritorious. As indicated above, the submission of evidentiary materials on a motion to dismiss pursuant to CPLR 3211(a)[7] transforms the court's analysis from determining whether the plaintiffs have stated a cause of action into whether the plaintiffs have a cause of action ( see Shapiro v Jackel , 65 AD3d 578 , supra). Dismissal under this analysis should not eventuate unless the evidentiary materials submitted by the movant demonstrate that a material fact claimed by the plaintiff is not a fact at all and that no significant dispute regarding it exists ( see Steve Elliot, LLC v Teplitsky , 59 AD3d 523, 873 NYS2d 672 [2d Dept 2009]). Here, the only "evidentiary" materials relied upon by the defendants are the complaints served and filed by the plaintiffs and the court's decision and order issued in the prior Election Law proceeding. Since none of the "documentary evidence" submitted by the defendants demonstrates that a material fact claimed by the plaintiff is not a fact at all and that no significant dispute regarding it exists, dismissal of the amended complaint under CPLR 3211(a)[7] is not warranted.
Nor do the documents relied upon by the defendants "resolve all factual issues as a matter of law and conclusively dispose of the plaintiffs' claims" as is required for dismissal under CPLR 3211(a)[1] ( see Herrnsdorf v Bernard Janowitz Constr. Corp . , 67 AD3d 640 , 889 NYS2d 600 [2d Dept 2009]; Berger v Temple Beth-El of Great Neck , 303 AD2d 346, 756 NYS2d 94 [2d Dept 2003]). To the extent that the defendants' motions may be read as demanding dismissal pursuant to CPLR 3211(a)[1], they are denied.
The court has considered the remaining contentions of defendants and finds them to be without merit. Accordingly, the cross motions by the defendants to dismiss the plaintiffs' amended complaint are in all respects denied.