Defendant( s). MOTION SEQ. No. 5-

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1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: DON. GEOFFREY J. O' CONNELL Justice SIDNEY M. SEGALL TRIAL/lAS, PART 4 NASSAU COUNTY -against- Plaintiff(s), INDEX No /05 INEZ CAIN and ROBERT BARSCH MOTION DATE: 3/16/07 Defendant( s). MOTION SEQ. No. 5- The following papers read on this motion: Cain Notice of Motion/Affirmation/Exhibits Barsch Notice of Cross Motion Affrmation in Opposition Cain Reply Defendants INEZ CAIN and ROBERT BARSCH seek an Order pursuant to CPLR 3025 granting them leave to serve and file an Amended Answer. Upon such relief, they seek an Order granting them sumar judgment pursuant to CPLR 3212, dismissing all claims against them. Both INEZ CAI and ROBERT BARSCH seek an Order granting them summar judgment dismissing the claims of malicious prosecution, alleging they are bared by the doctrines of res judicata and collateral estoppel. Plaintiff opposes. The plaintiff opposes the applications on procedural grounds. Procedurally, he argues thatthe motions are untimely, CAIN' s being made four (4) days after the time specifically noted in the paries ' certification Order, and BARSCH' s being made thirt (30) days after the time to do so expired. Counsel for all paries appeared before the undersigned and certified the matte for trial on August, All received copies of the Certification Order, signed by representatives from their offces, who acknowledged that a Note ofissue was to be fied within 90 days, and any pary seeking to make a summar

2 judgment motion must do so within 60 days of such filing. The Note ofissue was filed on November The CAIN motion was made on Januar , and the BARSCH motion was made on both more than 60 days after the fiing ofthe Note ofissue. Februar , Based on the proof presented, including the fact that at the time the applications were made the matter did not appear on a trial calendar, and there is apparently no prejudice to the plaintiff, the motions wil not be Denied as uneasonably untimely pursuantto CPLR 3212( a); Bril v. City afnew Yark 2004 N. Y. Lexis 1526 (2004). The Court agrees with the defendants that it is in the interest of justice to decide the matter on the merits. Plaintiff also opposes procedurally, contending that pursuant to CPLR ~ 3211(a)(5) res judicata should be raised in the defendant' s responsive pleading, which it was not. He opposes the application ofthe defendants to amend their answers arguing that this defense has been waived. It is undisputed that the defendants served and fied their Verified Answers in this action prior to the decision which they now rely upon for dismissal as res judicata. It is further undisputed that one of the decisions curently relied upon by the defendants was issued on November 6, 2006, after discovery in this matter was completed and the matter was certified for trial. The proposed seventh affirmative defense seeking a dismissal due to res judicata and collateral estoppel is not without merit on its face, and the movants have offered a reasonable excuse of why it was not asserted in their original answers. Thus, the motion to amend is properly granted. CPLR Plaintiff, an attorney appearing pro se, is the former employer of defendant INEZ CAIN. He seeks damages from the defendants for malicious prosecution. In the underlying action CAIN alleged that SEGAL assaulted her. On May that action was dismissed at the close of plaintiffs case at trial, the Justice presiding finding that CAIN had failed to demonstrate the requisite intent on the par of SEGALL. As par of that action, brought in Kings County Supreme Cour, SEGALL sought sanctions against both CAIN and BARSCH, pursuant to NYCRR 130-, alleging that they engaged in frivolous conduct in commencing that action. That application was denied by Order dated May 2, 2006.

3 The Justice presiding, Justice Schack, held that CAIN' s prosecution of the law suit was "neither frivolous nor sanctionable." The Justice specifically defined "malicious prosecution" as the "malicious institution of judicial proceedings without probable cause for doing so which finally ends in failure." The Justice continues stating that it would be "difficult for Mr. Segall to prevail in a malicious prosecution action noting that there was physical contact between the paries which could be considered "probable cause" for that lawsuit. The Justice further states, however, that if Mr. Segall believed that Ms. Cain sought "retribution against him he may pursue an appropriate action." (Motion, Exh. D) SEGALL renewed his application for Par 130 sanctions. A hearing was held, and after the hearing the Cour issued a second decision and Order denying the application. Justice Schack specifically found CAIN and her attorney "did not engage in frivolous conduct." He further found that although the action was unsuccessful, CAIN and her attorney should not be subject to costs and sanctions pursuant to 22 NYCRR (c). (Motion, Exh. E) Based on those findings and Orders, the defendants seek a dismissal ofthis action alleging malicious prosecution. On the merits the applications are Granted. The findings of a Kings County Justice, in denying plaintiffs application for sanctions for alleged frvolous conduct" pursuant to the 22 NYCRR (c), creates a bar to his claims in this action under the principles of res judicata or collateral estoppel. Plaintiff currently argues that Part 130 sanctions involve a different standard of conduct to be judged. He claims that the Cour only found that CAIN and BARSCH did not engage in frivolous conduct, which is very different from finding that they did not maliciously prosecute CAIN' s claims or abuse the process. The Court notes that SEGALL' s curent arguments are in stark contrast to his earlier assertions in this action that his motion for sanctions in Kings County involved the same "liability facts here" and a decision in this application "would control here." More specifically, he stated that "Justice Schack' s findings of fact would preclude the losing par from pressing the instant case to a liability trial. To allow otherwse would be to allow such losing par to attack collaterally Justice Schack' s findings offact; such a par is estopped

4 from making such a collateral attack. Indeed, Justice Schack' s decision to hold a fact-finding hearing precludes a motion for summar judgment here. " (Motion, Exh. F) In the Complaint before this Court, plaintiff SEGALL alleges that "Mr. Barsch and Ms. Cain wholly lacked probable cause to commence the underlying action." (Motion, Exh. A, par. 47). He alleges that the defendants pursued the claim despite this due to malice and an ilicit attempt to extort money from him. While he does not specifically set forth his theory for recovery, it is apparently undisputed that he is seeking damages for CAIN and BARSCH' s malicious prosecution, and abuse of process. SEGALL seeks compensatory damages for the time he spent having to defend himself, damage to his reputation, and punitive damages. (Motion, Exh. A). To prevail on a malicious prosecution claim, a plaintiff must establish four elements: (1) the initiation of a criminal proceeding by the defendant against the plaintiff, (2) termination of the proceeding in favor of the accused, (3) lack of probable cause, and (4) malice. Brown Sears Roebuck and Co. 297 AD2d (1 sl Dept, 2002). In his decision Justice Schack makes a specific finding that Ms. CAIN had probable cause for commencing that action. Thus, that element of malicious prosecution has been determined. Mr. SEGALL canot succeed in this action for malicious prosecution as he canot now claim that Ms. CAIN had no probable cause for her battery claim. There is no distinction in the factual basis for determination of that element in the Brooklyn action or this action. Plaintiff correctly quotes Curiano Suozzi (63 NY2d 113, 117) for the elements of a specific category of prima facie tort which are: " (1) intentional inflction of har, (2) causing special damages, (3) without excuse or justification, (4) by an act or series of acts that would otherwise be lawful." What he ignores is that Justice Shack specifically found that defendant had probable cause to make the complaint and thus canot be said to have acted without excuse or justification. Justice Schack' s determination also precludes plaintiff attempting to prove that the defendant actions were pursued with malice, defined as "conscious falsity". In his Decision and Order Justice Schack determined that element, when he found that CAIN and BARSCH did not assert material factual statements which were false. Thus, his finding precludes plaintiff from succeeding on his claims in this action.

5 In his opposition papers, plaintiff refers to the elements of abuse of process which are intent to do har without economic or social justification and the use of process in a perverted maner to achieve a collateral objective. Simithis v 4 Keys Leasing Maintenance Co. 151 AD2d (PI Dept, 1989). The mere reporting of a crime to police and giving testimony are not suffcient to sustain a cause of action for abuse of process. DeMarinis v Sterling Mets, 13 Misc3d 1243(A) (Sup. Ct. Nas., 2006). Plaintiff s attempt to assert a different theory of recovery on the same facts is clearly impermissible. Whether the stated factual allegations support and award financial recovery as an element of "frvolous conduct" or as an element of "malicious prosecution" or as an element of "abuse of process, successive attempts to recover on the same underlying facts are prohibited. Notwithstanding the differences in legal theories, the claims in the present action arose out of the same transactions as those in the prior actions. Under the transactional analysis approach, these claims are bared, and thus the Complaint is properly dismissed. Hypertronics, Inc. v. Digital Equipment Corporation 195 A.D.2d 541 (2 d Dept. 1993); CPLR ~ 3211 (a)(5); Carta v. Lefrak 203 A. 2d 94 (4th Dept. 1994), Iv. dismissed 86 N. Y.2d 774; Brien v. City of Syracuse 54 N.Y.2d 353 (1981). Based on the proof and arguments presented, those portions of the motions of both CAIN and BARSCH seeking sumary judgment are also Granted. It is, SO ORDERED. Dated: /7 ij ENTERED HAY NAIIU COTY COUNTY CL epl