SECOND GENERATION PARTNERS v. DUANE READE (2005)

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about July 3, 2002, which granted defendants' motion to dismiss plaintiffs' causes of action for malicious prosecution and abuse of process;  order, same court and Justice, entered June 4, 2003, which, to the extent appealable, denied plaintiffs' motion for leave to amend its complaint with additional facts purporting to support its malicious prosecution and abuse of process claims, and adding causes of action for breach of implied contract in fact and breach of implied contract in law;  and order, same court and Justice, entered on or about September 18, 2003, granting defendants' motion to dismiss plaintiffs' cause of action for tortious interference with contract, and implicitly denying plaintiffs' motion to amend its complaint to allege additional facts in support of that claim, unanimously affirmed, with one bill of costs.

 Plaintiffs' cause for malicious prosecution is not viable since they cannot show that probable cause was entirely lacking for defendants' underlying declaratory judgment action against them (see Engel v. CBS, Inc., 93 N.Y.2d 195, 204-206, 689 N.Y.S.2d 411, 711 N.E.2d 626 [1999];  Williams v. Barber, 3 A.D.3d 695, 696-697, 770 N.Y.S.2d 477 [2004];  Honzawa v. Honzawa, 268 A.D.2d 327, 701 N.Y.S.2d 411 [2000] ).   Where, as here, a judgment has been entered against the malicious prosecution plaintiff in the prior action of which it complains, that circumstance is at least prima facie evidence that the prior action was based on probable cause, and this presumption is not overcome by a subsequent reversal (see Crown Wisteria, Inc. v. F.G.F. Enters. Corp., 168 A.D.2d 238, 562 N.Y.S.2d 616 [1990] ).   Plaintiffs have failed to allege any facts from which it might be inferred that the prior decision in defendants' favor in the underlying action was obtained by fraud or misrepresentation and have thus failed to overcome the presumption of probable cause (see id.;   compare Honzawa, supra).   Indeed, even without the presumption, we would find that the underlying action, while ultimately unsuccessful, was based on probable cause.   Leave to amend to permit plaintiffs to assert additional factual allegations in purported support of their malicious prosecution claim was properly denied, since the proposed amendments did not set forth facts permitting the inference that the prior judgment was obtained by fraud or misrepresentation (see generally Heller v. Louis Provenzano, Inc., 303 A.D.2d 20, 25, 756 N.Y.S.2d 26 [2003] ).

 The court also properly dismissed plaintiffs' claim for abuse of process.   No action for abuse of process will lie premised merely upon the commencement of a civil action, even if such action is commenced with malicious intent (see Walentas v. Johnes, 257 A.D.2d 352, 354, 683 N.Y.S.2d 56 [1999], lv. dismissed 93 N.Y.2d 958, 694 N.Y.S.2d 635, 716 N.E.2d 700 [1999];  Artzt v. Greenburger, 161 A.D.2d 389, 390, 555 N.Y.S.2d 127 [1990];  Raved v. Raved, 105 A.D.2d 735, 736, 481 N.Y.S.2d 170 [1984] ).   There is no indication that “process” was perversely utilized by defendants to obtain a collateral advantage.   Defendants, in the prior action, sought a declaration that they were entitled to possession of the subject premises, relief that was entirely appropriate and in no way collateral to their objective of securing an exclusive right to possess the premises (compare Board of Educ. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Assn., Inc., 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 [1975] ).   Plaintiffs' proposed amended complaint failed to cure the defects in this claim.

 Also lacking viability was plaintiffs' claim that the prior action brought by defendants tortiously interfered with its contract with a third party.   Defendant's commencement of the declaratory judgment action is immunized by the Noerr-Pennington doctrine, which holds, essentially, that parties may not be subjected to liability for petitioning the government (see Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 [1961];  and see United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 [1965] ).   The filing of litigation falls within the protection of the Noerr-Pennington doctrine, which has been applied to bar claims of tortious interference predicated on the commencement of litigation (see Matsushita Elec. Corp. v. Loral Corp., 974 F.Supp. 345 [S.D.N.Y.1997];  Concourse Nursing Home v. Engelstein, 278 A.D.2d 35, 717 N.Y.S.2d 154 [2000] ).   Plaintiffs have failed to allege sufficient facts from which it might be inferred that the prior action was a “sham” so as to overcome the bar posed by Noerr-Pennington (see id.).   Indeed, the record demonstrates as a matter of law that the prior litigation was not objectively baseless, and, as noted, plaintiffs have no viable claim that defendants' prior victory was obtained by fraud or deceit (see Professional Real Estate Inv., Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60, 113 S.Ct. 1920, 123 L.Ed.2d 611 [1992];  T.F.T.F. Capital Corp. v. Marcus Dairy, Inc., 312 F.3d 90, 93-94 [2nd Cir.2002] ).   Again, plaintiffs' proposed amendments do not cure the claim's essential deficiencies, and were properly rejected.

 The court also properly denied plaintiffs' motion to amend their complaint to include a claim for unpaid rent based on an implied contract theory.   For a contract to be implied in fact, there must proof of a meeting of the minds (see Miller v. Schloss, 218 N.Y. 400, 406, 113 N.E. 337 [1916];  Berlinger v. Lisi, 288 A.D.2d 523, 731 N.Y.S.2d 916 [2001] ), which undisputedly did not occur here.   Also unavailing was plaintiffs' proposed amendment seeking to recover rent on a quasi contract theory.   Whether plaintiffs' claim is articulated as a breach of a quasi contract or a breach of the written contract, i.e., the lease and sublease in effect between the time of the declaratory judgment granted in defendants' favor in the underlying action and the time of this Court's reversal of that judgment, plaintiffs are not entitled to rent for the period in question, since the record conclusively establishes that plaintiffs caused defendants to be denied actual possession of the premises, and thus that defendants received no benefit that would support the imposition of liability for past rent on an unjust enrichment theory.

We have reviewed plaintiffs' remaining arguments and find them unavailing.