Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

Josephina Del Valle HERNANDEZ, Plaintiff-Appellant, v. NEW YORK CITY LAW DEPARTMENT CORPORATION COUNSEL, et al., Defendants-Respondents.

Decided: February 23, 1999

WALLACH, J.P., RUBIN, MAZZARELLI and ANDRIAS, JJ. Josephina Del Valle Hernandez, Pro Se. Marta Soja, Ethan Leonard, for Defendants-Respondents.

Order and judgment (one paper), Supreme Court, New York County (Jane Solomon, J.), entered on or about December 11, 1997, which, inter alia, granted defendants' motions to dismiss the amended verified complaint in its entirety and enjoined plaintiff from commencing any further action in the courts of New York State arising out of the same facts and circumstances as the instant action, unanimously affirmed, without costs.

 Even when given the benefit of every favorable inference (see, Donnelly v. Morace, 162 A.D.2d 247, 556 N.Y.S.2d 605), plaintiff's complaint fails to state any claim for which relief can be granted.   In her causes, purportedly for slander and libel, plaintiff fails to make the requisite allegation[s] setting forth the particular defamatory words spoken or printed (see, CPLR 3016[a];  Gardner v. Alexander Rent-A-Car, Inc., 28 A.D.2d 667, 280 N.Y.S.2d 595).   Similarly defective are plaintiff's causes of action for fraud and misrepresentation, since she fails to specify the misrepresentation on which she relied to her detriment or the details of the other circumstances constituting the wrongs for which she would recover (see, CPLR 3016[b] ).  Also inadequately alleged is plaintiff's remaining cause for malicious prosecution, since plaintiff fails to state what criminal charges were filed against her, or that the charges were filed without probable cause and with actual malice (see, Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. denied 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257).   Finally, while plaintiff may have suffered emotional distress, she fails, inter alia, to allege sufficiently the sort of extreme or outrageous conduct necessary to support a cause of action for intentional infliction of emotional distress (see, Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699).

 Respecting the motion court's determination to enjoin plaintiff from filing further actions stemming from the facts and circumstances alleged in this case, although public policy favors free access to the courts, this right is not absolute (Shreve v. Shreve, 229 A.D.2d 1005, 1006, 645 N.Y.S.2d 198), and, in view of plaintiff's demonstrated determination to abuse her right of court access to file repeated and repetitive meritless actions, a course of conduct which has already led to a Federal court injunction similar to the one here at issue, the instant injunction was entirely justified (see, id.).


Copied to clipboard