Plaintiff Index No. 4858/05

Transcription

1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU Present: HON. ZELDA JONAS Justice BARRY WEISMAN, TRIAL/IAS PART Plaintiff Index No. 4858/05 - against - Sequence No. 1 Motion Date: July 21, 2006 MATTHEW SILBERZWEIG, Defendant. The following papers read on this motion: Notice of Motion. Affirmation in Opposition.... Motion by defendant, Matthew Silberzweig ("Silberzweig ), for an order of this Court, pursuant to CPLR 3212, granting summary judgment dismissal of plaintiff, Barr Weisman' s ("Weisman ) complaint is granted. This matter involves an action by the plaintiff, Barr Weisman, alleging malicious prosecution (1 st cause of action), false imprisonment (2 cause of action), false arrest (3rd cause of action), libel per se (4 cause of action), slander per se (5th cause of action), libel (6 cause of action), slander (7 cause of action), and intentional infliction of emotional distress (8 cause of action), by the defendant, Matthew Silberzweig.

2 The plaintiff, Weisman, and the defendant, Silberzweig, are in the business of buying and selling used cars; however, they were never in business together. They both attend the same used car auctions and are competitors with one another. Plaintiff herein alleges that the defendant attempted to have him banned from attending the car auctions by claiming that the plaintiff was assaulting, robbing, menacing, and harassing him at these auctions. Specifically, plaintiff alleges that over the course of eight months in 2003, the defendant, on three separate occasions and in three different counties, filed false criminal charges against the plaintiff, each of which alleged criminal conduct by the defendant against the plaintiff at a car auction. Although on each occasion, the plaintiff was arrested, imprisoned, detained, and prosecuted, ultimately, all three criminal actions resulted in either an acquittal or dismissal of all charges. First, on or about March , the defendant fied a criminal complaint against the plaintiff in Bronx County alleging that the plaintiff, along with two other men, robbed and assaulted the defendant just outside the grounds at a car auction. As a result of said complaint, the plaintiff was arrested and charged with several crimes. was then taken to a holding cell of the 43 precinct in the Bronx and was imprisoned and detained for approximately 24 hours before being arraigned. Thereafter, plaintiff was released, and on or about March , a temporary order of protection was issued, pursuant to which the plaintiff was to refrain from communicating, stalking, or harassing the defendant. However, pursuant to the same order of protection, in order to avoid any abuse of the order, the plaintiff, Weisman, was permitted to come into contact

3 with defendant, Silberzweig, during the course of business and was allowed to attend auto auctions. Subsequently, on or about May , Silberzweig again filed a criminal complaint against Weisman in Kings County in which he alleged that on April 25, 2003 over a month prior, the plaintiff, Weisman, violated the March temporary order of protection effected from the Bronx criminal action by threatening the defendant at another car auction. Plaintiff was again arrested in Bronx Criminal Court where he was defending himself with regard to the false robbery and assault charges made by the defendant. The plaintiff was then taken to Kings County for processing and again, after being detained and imprisoned for a period of approximately 24 hours, the plaintiff was again allowed incidental contact with the defendant at car auctions. On or about November 7, 2003, the plaintiff, allegedly in order to avoid further court appearances, accepted the Kings County Assistant Distrct Attorney s offer of a disposition of an adjournent contemplating dismissal, as a result of which, the Kings County criminal case was ultimately disposed. Thereafter, another order of protection was effected, which again allowed for incidental contact between the plaintiff and the defendant at car auctions. Despite the foregoing order however, on November 13, 2003, the defendant again fied a criminal complaint against the plaintiff but this time in Queens County. This action arises out of a dismissal of the charges in Queens County in which defendant Silberzweig, was the complainant and plaintiff, Weisman, was charged with criminal

4 contempt, a "Class A" misdemeanor. In support of his motion for sumary judgment defendant submits his own affidavit wherein he states that on or about November , at approximately 9:30 a., he arived at a car auction at JFK Airport in Queens where, as he entered the inspection area prior to the auction, he was approached by the plaintiffwho allegedly stated to him "If I have to make one more trip to court, I'm going to visit you (see, Defendant's Affidavit 4). Defendant argues that as a result of this statement he contacted the local New York City police precinct and the New Yorklew Jersey Port Authority Police to report the supposed violation of the order of protection. As a result, the police arrested Weisman. On November , the Queens DA had defendant, Silberzweig, swear out a criminal complaint containing allegations of criminal contempt as an "A" misdemeanor. The next day, on November , Weisman was arraigned, and the matter was eventually dismissed on January 3, 2005 by the Queens DA. Based on the dismissal of that charge, on April 9, 2005, plaintiff, Weisman commenced this action by serving a sumons and verified complaint upon Silberzweig. On January 24, 2006, plaintiff testified at an examination before trial, and thereafter, on February 10, 2006, a certification conference was held, and an order was entered into by both parties. Pursuant to the certification order, all motions for summary judgment were to be made within 60 days of the Note of Issue fiing, and the oral deposition of the defendant would be held after the certification conference. The defendant, Silberzweig,

5 testified at his EBT on February , and on March 7, 2006, plaintiff filed the note of issue. Upon the instant motion, timely made (CPLR 2211) on May 5, 2006, defendant seeks to dismiss plaintiff s complaint on the grounds that inter alia each cause of action falls out of the requisite statute-of-limitations period prescribed in the CPLR. As a result of plaintiff s inability to raise an issue of fact requiring a trial, defendant's motion is granted. Each cause of action asserted by the plaintiff, namely malicious prosecution (cause of action # 1), false imprisonment (cause of action #2), libel per se (cause of action #4), slander per se (cause of action #5), libel (cause of action #6), and slander (cause of action #7) is barred by the applicable one-year statute of limitations (CPLR 215 (3 D. Likewise, plaintiff s third and eighth causes of action, both of which set forth a claim for an intentional tort (false arrest and the intentional inflction of emotional distress, respectively) are also covered by the one-year statute oflimitations ofcplr 215(3) (CPLR 215(3); see also, Bonanno v. City of Rye, 280 A. 2d 630 (2 Dept. 2001); Goldner v. Sullivan, Gough, Skipworth, Summers Smith 105 A. 2d 1149 (4th Dept. 1984); Jemison v. Crichlow 139 A. 2d (2 Dept., 1988)). In opposing defendant's motion, plaintiff relies on subdivision 8 ofcplr g215 and argues that in light of CPLR 215(8), the "plaintiff (has) at least one year from the termination of the criminal action... in which to commence the civil action" (CPLR 215(8)). Essentially, plaintiff suggests that this civil action, having been commenced on

6 April 9, 2005, was commenced more than one year after November 10, 2003 (date of the action on which this matter is predicated) but within one year of dismissal of the defendant' s criminal complaint, on January 3, This argument, however, is unavailing. Plaintiff has clearly misread and misapplied the statute. Pursuant to CPLR 215(8): Whenever it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises, the plaintiff shall have at least one year from the termination of the criminal action as defined in section 20 of the criminal procedure law in which to commence the civil action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining" (CPLR 215(8) (emphasis addedd. CPLR 215(8) speaks to circumstances where specific conduct by an individual both subjects the individual to potential liability for an intentional tort and constitutes criminal activity which becomes the subject of criminal proceedings. CPLR 215(8)' one-year extension of the statute of limitations applies only with respect to an actual wrongdoer against whom criminal proceedings have been brought, i. in this case, the defendant, Silberzweig (see, Vilanueva v. Camparetto 180 A. 2d 627 (2 Dept. 1992)). Subdivision 8 applies, by its terms, when a prior criminal action against the same defendant was commenced "with respect to the event or occurrence from which a claim governed by (CPLR 215) arises. " In the instant case, the requirements of the statute are not satisfied because the defendant in the civil action, Silberzweig, was not prosecuted for any conduct that occurred on a particular occasion; rather it was the

7 '.."",,\ '(\p''' ''\ -,'' ' ~, plaintiff herein that was the defendant in the criminal proceedings. Thus, as a result of plaintiff s inabilty to raise an issue of fact warranting a trial, defendant's motion for summary judgment is herewith granted. This shall constitute the decision and order of the Court. Dated: 't),i\ 1:; \, \JfI' 1t ls. l-uijo OuN1'(j csp.\j9 ' s off\ct: I f:". NI"l. lv l-\:r\iz