                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:    October 23, 2014               517788
                                                       517785
________________________________

PETER PLACE,
                      Appellant,
     v                                      MEMORANDUM AND ORDER

MICHAEL CICCOTELLI,
                    Respondent.
________________________________


Calendar Date:   September 5, 2014

Before:   Stein, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.

                             __________


     John M. Hogan Jr., Saratoga Springs, for appellant.

     Alisa Dalton, Saratoga Springs, for respondent.

                             __________


Stein, J.P.

      Appeals (1) from an order of the Supreme Court (Crowell,
J.), entered July 9, 2013 in Saratoga County, which denied
plaintiff's motion to, among other things, strike a request for
judicial intervention filed by defendant, and (2) from an order
of said court, entered July 10, 2013 in Saratoga County, which
granted defendant's motion to dismiss the complaint.

      Plaintiff and defendant are majority shareholders in a
corporation that is the subject of an acrimonious judicial
dissolution proceeding commenced by defendant (Matter of Stony
Creek Preserve Inc., ___ AD3d ___ [decided herewith]). As the
parties were leaving an examination before trial in relation to
that proceeding, a physical encounter occurred and defendant
subsequently filed a police report and signed a criminal
complaint alleging that plaintiff threatened and shoved
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defendant. As a result, plaintiff was arrested and charged with
harassment in the second degree, a violation, and a temporary
order of protection was issued requiring plaintiff to stay away
from defendant. Additionally, defendant allegedly stated to
members of a gun club, of which the parties were both members,
that plaintiff was dishonest and had cheated defendant.
Plaintiff was acquitted of the criminal charges after a trial and
he subsequently commenced this action for damages, alleging
malicious prosecution, abuse of process and defamation.
Plaintiff thereafter moved to vacate the request for judicial
intervention filed by defendant's attorney, which set forth the
judicial dissolution proceeding as a related case, and also
requested that the court recuse itself from the proceeding.
Supreme Court denied plaintiff's motion in its entirety.
Defendant then filed a pre-answer motion to dismiss the complaint
arguing, among other things, that it failed to state a cause of
action (see CPLR 3211 [a] [7]). Supreme Court granted the motion
and plaintiff now appeals from both orders.

      Supreme Court properly denied plaintiff's motion to vacate
the request for judicial intervention, which was filed by
defendant's counsel after defendant was served with process, as
authorized by 22 NYCRR 202.6 (a). Moreover, we discern no basis
to disturb Supreme Court's determination that the instant action
and the judicial dissolution proceeding were "sufficiently
related to justify the assignment" of both of them to the same
judge (see 22 NYCRR 202.3; see also Matter of Morfesis v Wilk,
138 AD2d 244, 246 [1988], appeal dismissed 72 NY2d 914 [1988];
105 NY Jur 2d, Trial § 8). Nor do we find Supreme Court's denial
of plaintiff's recusal request – which did not allege any legal
basis for disqualification under Judiciary Law § 14 – to be an
abuse of its discretion (see Clark v Farmers New Century Ins.
Co., 117 AD3d 1208, 1210 [2014]; Matter of Moore v Palmatier, 115
AD3d 1069, 1070 [2014]; Gonzalez v L'Oreal USA, Inc., 92 AD3d
1158, 1159 [2012], lv dismissed 19 NY3d 874 [2012]).

      Turning to the motion to dismiss, we conclude that Supreme
Court erred in dismissing plaintiff's malicious prosecution cause
of action. The elements of such a claim are "(1) the
commencement or continuation of a criminal proceeding by the
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defendant against the plaintiff, (2) the termination of the
proceeding in favor of the accused, (3) the absence of probable
cause for the criminal proceeding and (4) actual malice"
(Broughton v State of New York, 37 NY2d 451, 457 [1975], cert
denied 423 US 929 [1975]; accord Moulton v State of New York, 114
AD3d 115, 125 [2013]; see Grucci v Grucci, 20 NY3d 893, 896
[2012]). As is particularly relevant here, "[i]n order for a
civilian complainant to be considered to have initiated a
criminal proceeding, 'it must be shown that [the complainant]
played an active role in the prosecution, such as giving advice
and encouragement or importuning the authorities to act'"
(Barrett v Watkins, 82 AD3d 1569, 1572 [2011], quoting Viza v
Town of Greece, 94 AD2d 965, 966 [1983], appeal dismissed 64 NY2d
776 [1985]; see Robles v City of New York, 104 AD3d 829, 830
[2013]; Nieminski v Cortese-Green, 74 AD3d 1550, 1551 [2010];
Krzyzak v Schaefer, 52 AD3d 979, 980 [2008]; see also Grucci v
Grucci, 20 NY3d at 895).

      In this case, the complaint alleges that defendant falsely
informed the police that plaintiff had threatened and pushed him,
which led to his arrest and prosecution. Similar allegations
that a complainant has knowingly provided false information to
the police or withheld information from police have been found to
be sufficient to state that the complainant initiated the
proceeding by playing an active role in the other party's arrest
and prosecution (see Kirchner v County of Niagara, 107 AD3d 1620,
1622 [2013]; Lupski v County of Nassau, 32 AD3d 997, 998 [2006];
Brown v Nassau County, 306 AD2d 303, 303 [2003]; Ramos v City of
New York, 285 AD2d 284, 299-300 [2001]; see also Grucci v Grucci,
20 NY3d at 901-902 [Pigott, J., dissenting]; PJI 3:50.2). Thus,
when we construe the pleadings liberally and give plaintiff the
benefit of every reasonably favorable inference (see Leon v
Martinez, 84 NY2d 83, 87-88 [1994]), we conclude that the
allegations contained in the complaint are sufficient to state a
cause of action for malicious prosecution (see Kirchner v County
of Niagara, 107 AD3d at 1622).

      With respect to the abuse of process claim, the three
essential elements are "(1) regularly issued process, either
civil or criminal, (2) an intent to do harm without excuse or
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justification, and (3) use of the process in a perverted manner
to obtain a collateral objective" (Curiano v Suozzi, 63 NY2d 113,
116 [1984]; accord Kosmider v Garcia, 111 AD3d 1134, 1137 [2013];
Minasian v Lubow, 49 AD3d 1033, 1035-1036 [2008]). In general,
such a claim "will only lie for improperly using process after it
is issued" (Minasian v Lubow, 49 AD3d at 1036; see Curiano v
Suozzi, 63 NY2d at 117; Liss v Forte, 96 AD3d 1592, 1593 [2012];
but see Parkin v Cornell Univ., 78 NY2d 523, 530 [1991]), and a
malicious motive alone is insufficient to give rise to a cause of
action to recover for abuse of process (see Curiano v Suozzi, 63
NY2d at 117; Matthews v New York City Dept. of Social Servs.,
Child Welfare Admin., 217 AD2d 413, 415 [1995], lv denied 87 NY2d
812 [1996]; Butler v Ratner, 210 AD2d 691, 693 [1994], lv
dismissed 85 NY2d 924 [1995]). Here, plaintiff's allegations in
the complaint pertaining to this cause of action, even construed
liberally, fail to allege that defendant actually used process
improperly – either the order of protection or the arrest warrant
– "in a manner inconsistent with the purpose for which it was
designed" (Minasian v Lubow, 49 AD3d at 1036; cf. D'Amico v
Correctional Med. Care, Inc., 120 AD3d 956, 960 [2014]). Thus,
Supreme Court properly granted defendant's motion to dismiss this
claim.

      We discern no error in Supreme Court's dismissal of
plaintiff's defamation cause of action. The complaint not only
fails to "sufficiently articulate the . . . time, manner and
persons to whom the alleged defamatory statements were made"
(Dobies v Brefka, 273 AD2d 776, 777 [2000], lv dismissed 95 NY2d
931 [2000] [internal quotation marks and citations omitted]; see
Martin v Hayes, 105 AD3d 1291, 1293 [2013]; compare Wilcox v
Newark Val. Cent. School Dist., 74 AD3d 1558, 1560 [2010]), it is
bereft of any allegation that plaintiff sustained special damages
or alleged facts that would constitute slander per se (see
Liberman v Gelstein, 80 NY2d 429, 434-436 [1992]). To the extent
that plaintiff asserts that Supreme Court abused its discretion
by failing to permit him to amend the complaint, we need only
note that there is no indication in the record that plaintiff
made a request to do so. Plaintiff's remaining contentions have
been considered and found to be lacking in merit.
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     McCarthy, Egan Jr., Lynch and Clark, JJ., concur.



      ORDERED that the order entered July 9, 2013 is affirmed,
without costs.

      ORDERED that the order entered July 10, 2013 is modified,
on the law, without costs, by reversing so much thereof as
granted defendant's motion to dismiss the malicious prosecution
cause of action; motion denied to that extent; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
