        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

38
CA 15-00414
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, AND SCUDDER, JJ.


ELIZABETH RESZKA, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

COUNCILMAN JOSEPH A. COLLINS, DEFENDANT-RESPONDENT.


HOGAN WILLIG, PLLC, AMHERST (STEVEN M. COHEN OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

JOSEPH A. COLLINS, DEFENDANT-RESPONDENT PRO SE.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered May 22, 2014. The order denied the motion of
plaintiff to dismiss the counterclaims of defendant.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in part and
dismissing the second counterclaim, and as modified the order is
affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking to remove
defendant from his position as a council member of the Town Board of
the Town of Hamburg. Defendant answered the complaint and asserted as
an affirmative defense that Supreme Court lacked subject matter
jurisdiction over plaintiff’s action. Plaintiff thereafter filed an
original proceeding pursuant to Public Officers Law § 36 before this
Court, correctly recognizing the validity of defendant’s affirmative
defense, and we dismissed the petition (Matter of Reszka v Collins,
109 AD3d 1134). While that proceeding was pending in this Court,
defendant filed an amended answer in this action and asserted two
counterclaims. After we dismissed the petition in the original
proceeding, plaintiff moved pursuant to CPLR 3211 (a) (2), (6), and
(7) to dismiss the two counterclaims in this action, and the court
denied the motion. We agree with plaintiff that the court erred in
denying that part of her motion seeking to dismiss the second
counterclaim, and we therefore modify the order accordingly.

     Initially, we reject plaintiff’s contention that the court should
have dismissed the counterclaims because it lacked subject matter
jurisdiction over plaintiff’s action (see generally CPLR 3211 [a]
[2]). The court’s lack of jurisdiction over plaintiff’s action is not
fatal to the counterclaims, which may be severed where a complaint is
dismissed or, as here, effectively dismissed (see CPLR 3019 [d];
Evolution Trading Mgt. LLC v Bank of N.Y. Mellon Corp., 88 AD3d 605,
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                                                         CA 15-00414

605; Ballen v Aero Mayflower Tr. Co., 144 AD2d 407, 410). Contrary to
plaintiff’s contention, dismissal of the counterclaims is not required
even where, as here, a complaint was or should be dismissed on
procedural grounds rather than on the merits (see Levess v Levess, 28
AD2d 513, 513, affd 21 NY2d 758; Becker v University Physicians of
Brooklyn, 307 AD2d 243, 244-245).

     We reject plaintiff’s further contention that the first
counterclaim, alleging defamation, should be dismissed on the ground
that it fails to state a cause of action (see CPLR 3211 [a] [7]). “On
a motion to dismiss pursuant to CPLR 3211, the pleading is to be
afforded a liberal construction” (Leon v Martinez, 84 NY2d 83, 87).
“We accept the facts as alleged [in the answer] as true, accord
[defendant] the benefit of every possible favorable inference, and
determine only whether the facts as alleged fit within any cognizable
legal theory” (id. at 87-88).

     Defendant alleged in his first counterclaim that plaintiff held a
press conference regarding the lawsuit, and he further alleged that
plaintiff “made slanderous and defamatory and libelous statements
intentionally, willfully and maliciously” attacking him in his
individual and professional capacity. Statements made in the course
of judicial proceedings are protected by absolute privilege provided
that they are material and pertinent to the issue to be resolved in
the proceeding (see Civil Rights Law § 74; Rosenberg v MetLife, Inc.,
8 NY3d 359, 365; Matter of Hoge [Select Fabricators, Inc.], 96 AD3d
1398, 1399; Sinrod v Stone, 20 AD3d 560, 561; Mosesson v Jacob D.
Fuchsberg Law Firm, 257 AD2d 381, 382, lv denied 93 NY2d 808). A
party cannot, however, maliciously commence a judicial proceeding
alleging false and defamatory charges and then circulate a press
release based on the same charges and escape liability by invoking
Civil Rights Law § 74 (see Williams v Williams, 23 NY2d 592, 599).
The first counterclaim here adequately states that plaintiff’s action
was without any basis in fact and was commenced solely to defame
defendant. Under those circumstances, we conclude that the court
properly refused to dismiss the first counterclaim (see Williams, 23
NY2d at 596; Halcyon Jets, Inc. v Jet One Group, Inc., 69 AD3d 534,
534-535; cf. Emergency Enclosures, Inc. v National Fire Adj. Co.,
Inc., 68 AD3d 1658, 1662-1663). Contrary to plaintiff’s further
contention, the first counterclaim also adequately states that
plaintiff acted with actual malice, which is a required element for a
defamation claim brought by a public official (see Silsdorf v Levine,
59 NY2d 8, 17, cert denied 464 US 831; see generally Freeman v
Johnston, 84 NY2d 52, 56, cert denied 513 US 1016).

     We agree with plaintiff, however, that the court erred in denying
the motion with respect to the second counterclaim, alleging malicious
prosecution. Where, as here, the underlying action is civil in
nature, the party alleging a claim for malicious prosecution must
allege a special injury (see Engel v CBS, Inc., 93 NY2d 195, 201-204;
Shatkin v Drescher, 24 AD3d 1292, 1292-1293; Molinoff v Sassower, 99
AD2d 528, 529). In the instant case, defendant “fail[ed] to plead
that the civil proceeding involved wrongful interference with [his]
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                                                         CA 15-00414

person or property” (Wiener v Wiener, 84 AD2d 814, 815; see Belsky v
Lowenthal, 47 NY2d 820, 821; Galanova v Safir, 127 AD3d 686, 687;
Molinoff, 99 AD2d at 529). Instead, defendant alleged damages
amounting to “the physical, psychological or financial demands of
defending a lawsuit,” which is insufficient to constitute a special
injury for a claim of malicious prosecution (Engel, 93 NY2d at 205;
see Dermigny v Siebert, 79 AD3d 460, 460).

     To the extent that defendant contends that the second
counterclaim is for abuse of process and not malicious prosecution, we
conclude that it must still be dismissed as well. “Insofar as the
only process issued [here] was a summons, the process necessary to
obtain jurisdiction and begin the lawsuit, there was no unlawful
interference with [defendant’s] person or property because the
institution of a civil action by summons and complaint is not legally
considered process capable of being abused” (Curiano v Suozzi, 63 NY2d
113, 116; see Muro-Light v Farley, 95 AD3d 846, 847). Defendant
alleges that plaintiff acted maliciously in bringing the action, but
“[a] malicious motive alone . . . does not give rise to a cause of
action for abuse of process” (Curiano, 63 NY2d at 117; see Muro-Light,
95 AD3d at 847).




Entered:   February 5, 2016                    Frances E. Cafarell
                                               Clerk of the Court
