IVANCEV v. GARRIDO (2020)

Order, Supreme Court, New York County (Debra A. James, J.), entered on or about April 4, 2018, which, to the extent appealed from, granted defendant's motion to dismiss the complaint and denied plaintiff's motion for leave to amend the complaint, unanimously affirmed, without costs.

In this post-divorce tort action, plaintiff alleges two causes of action for malicious prosecution, based on two family offense proceedings defendant commenced against him, and a cause of action for defamation.  In the proposed amended complaint, plaintiff asserts abuse of proceeding as an additional cause of action.  Neither the original complaint nor the proposed amended complaint state a cognizable cause of action (see Davis & Davis v. Morson, 286 A.D.2d 584, 585, 730 N.Y.S.2d 293 [1st Dept. 2001];  see CPLR 3025[b] ).

The complaints fail to state a cause of action for malicious prosecution because they do not allege special injury (see Wilhelmina Models, Inc. v. Fleisher, 19 A.D.3d 267, 269, 797 N.Y.S.2d 83 [1st Dept. 2005] ).  Plaintiff alleges that he lost his per diem employment as an armed security guard and was unable to find employment as a result of defendant's family offense petitions against him, because his license to carry a weapon was suspended.  However, under the circumstances, these allegations fail to satisfy the requirement for special injury (see Engel v. CBS, Inc., 93 N.Y.2d 195, 206, 689 N.Y.S.2d 411, 711 N.E.2d 626 [1999] ).  The original complaint does not state whether plaintiff was employed at the time he commenced this action, and does not mention his salary or the terms of his employment as an armed security guard.  The proposed amended complaint alleges that plaintiff was not a full-time employee, and does not allege that he was entitled to continuing employment.  The proposed amended complaint also alleges that plaintiff's employer did not offer him continuing per diem employment, but does not allege that the employer withdrew an employment offer or that other prospective employers would not hire plaintiff because of the family offense petitions (see Dermigny v. Siebert, 79 A.D.3d 460, 911 N.Y.S.2d 619 [1st Dept. 2010] ).

The complaints fail to state a cause of action for defamation (see Dillon v. City of New York, 261 A.D.2d 34, 37–38, 704 N.Y.S.2d 1 [1st Dept. 1999] ).  Contrary to plaintiff's argument, his defamation claim is barred by the absolute litigation privilege and there is no evidence that the family offense proceedings were sham actions brought solely to defame him (see Flomenhaft v. Finkelstein, 127 A.D.3d 634, 637–638, 8 N.Y.S.3d 161 [1st Dept. 2015] ).

The proposed amended pleading fails to state a cause of action for abuse of process (see Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324 [1984] ).  Defendant commenced two family offense proceedings based on separate incidents in which plaintiff allegedly hit her, verbally abused her, and threatened to shoot her.  Both petitions were dismissed;  one on the merits and the other without prejudice.  The mere filing of petitions is not legally considered process capable of being abused (see Curiano v. Suozzi, 63 N.Y.2d at 113, 480 N.Y.S.2d 466, 469 N.E.2d 1324).