Court Patiently Parses Panoply of Pernicious Pleadings

A front-yard fracas erupts among neighbors. Police are called. An arrest is made. The charge is dismissed. Civil litigation ensues.

A verbal altercation occurred between Denise Mahoney and her neighbors on August 28, 2016. The spat allegedly began after Terry Mayowski looked through the window of his home and spotted Mahoney standing in her front yard across the street waiving her finger and shouting obscenities at him. After observing Mahoney, Mayowski walked into his front yard to confront her. Melissa Teehan, Mayowski’s girlfriend, joined Mayowski shortly after she overheard the shouting and began arguing with Mahoney.

As the verbal confrontation ensued, Mahoney allegedly threatened to assault the couple. Teehan, allegedly feeling threatened, returned into her home and called the police. Teehan and Mayowski made a statement to the police after they arrived and Mahoney was arrested and charged with harassment. Teehan also obtained an ex-parte order of protection against Mahoney, causing the police to take possession of her firearm.

The Suffolk County District Attorney’s Office initiated a criminal action against Mahoney, and a hearing was held on May 5, 2017. In addition to Mayowski and Teehan, William Weigelt, another of Mahoney’s neighbors, appeared and testified against her. During an adjournment of the trial, Weigelt, having learned that a video of the altercation existed, returned to the Suffolk County District Attorney’s Office where he revealed that some of his previous testimony was untruthful or inaccurate. As a result, the Suffolk County District Attorney’s Office moved to dismiss the criminal complaint against Mahoney and the order of protection against her was vacated.

Following dismissal of the complaint, Mahoney sued her neighbors for false arrest, malicious prosecution, defamation, the infliction of emotional distress, and abuse of legal process. The neighbors denied Mahoney’s claims and asserted affirmative defenses. However, Weigelt, whose answer recited protracted acrimonious relations between himself, Mahoney, and her wife, Tracy Malone, asserted counterclaims against Mahoney for infliction of emotional distress, abuse of process, and defamation. Weigelt also impleaded Tracy Malone, asserting defamation and the intentional and negligent infliction of emotional distress against her. In response, Tracy Malone denied all of Weigelt’s claims.

Weigelt moved for dismissal of the complaint against him. Asserting that the false arrest and malicious prosecution claims failed as a matter of law, because he played no role in instigating the action against Mahoney. He was merely one of three testifying witnesses, the action was not terminated in Mahoney’s favor, and probable cause existed for her prosecution.

Weigelt argued that the defamation claims against him should also be dismissed because, with the exception of his testimony at trial, Mahoney failed to sufficiently allege time, manner, and persons to whom Weigelt made defamatory statements against her. Weigelt also requested dismissal of the claims against him for intentional and negligent infliction of emotional distress on the basis he did not engage in either extreme or outrageous conduct toward Mahoney. His conduct at trial was not the proximate cause of any physical or emotional injury to her.

Teehan and Mayowski sought dismissal of Mahoney’s claims on similar bases, arguing that they merely furnished information to the responding police officers who utilized their own judgment in determining that probable cause existed for the arrest of Mahoney. The alleged defamatory statements were truthful and made during trial, and they did not engage in any conduct so outrageous that it was either injurious to Mahoney’s physical or emotional well-being.

Mahoney and Malone, by way of separate motions, moved for dismissal of the counterclaims and third-party claims against them. Mahoney contended that she did not engage in any extreme outrageous conduct, her conduct did not cause Weigelt economic or emotional injury, and the complaints and notices she made concerning Weigelt’s behavior as a neighbor, or the conditions at his residence, were made for legitimate purposes. Mahoney asserted that the statements and letters she published concerning Weigelt’s behavior as a neighbor were protected by truth, qualified privilege, and did not involve allegation of crimes so serious that they rose to the level of defamation per se. Malone made similar arguments in support of her motion to dismiss the third-party complaint against her.

To establish a claim for abuse of process, a plaintiff must prove three essential elements: regularly-issued process either civil or criminal, an intent to do harm without excuse or justification, and the use of process in a perverted manner to obtain a collateral objective. But where the complaint fails to allege some irregular activity in the use of judicial process for a purpose not sanctioned by law, or that the process unlawfully interfered with the plaintiff’s property, an action to recover damages based upon the alleged abuse of process must fail.

As for the claims predicated on false arrest: a civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest.

To make out an actionable malicious prosecution claim: a plaintiff has the heavy burden of establishing the commencement or continuation of a criminal proceeding against the plaintiff, the termination of that proceeding in the plaintiff’s favor, the absence of probable cause for the criminal proceeding, and actual malice. Probable cause to believe that a person committed a crime is a complete defense to a claim of malicious prosecution. Information provided by an identified citizen accusing another individual of a specific crime is generally legally sufficient to provide the police with probable cause to arrest.

The elements of a cause of action to recover damages for defamation are a false statement, published without privilege or authorization to a third-party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special damages or constitute defamation per se. The complaint must set forth the particular words allegedly constituting defamation, and it must also allege the time, place, and manner in which the false statements were made and by whom they were made.

Generally, a plaintiff alleging slander must plead and prove that he or she has sustained special damages. Special damages consist of the loss of something having economic or pecuniary value, which must flow directly from the injury to reputation caused by the defamation. A plaintiff need not, however, prove special damages as a result of slander if he or she can establish that the alleged defamatory statement constituted slander per se. The four categories of slander per se consist of statements that: charge that the plaintiff committed a serious crime, tend to injure the plaintiff in his or her trade, business or profession, state the plaintiff has a loathsome disease, or impute unchastety to a woman.

Statements which are otherwise defamatory may be subject to a qualified privilege when they are fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his or her interest is concerned. Qualified “common interest” privilege extends to a communication made by one person to another upon a subject in which both have an interest. When subject to these forms of conditional privilege, statements are protected if they were not made with malice or reckless disregard to truth or falsity. In this context, malice is not to be confused with the concept of malice as an evil intent or a motive arising from spite or ill will.

In addition to qualified privilege, statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court, are generally accorded an absolute privilege, as long as the statements may be considered in some way “pertinent” to the issues in the proceeding. The privilege applies to statements made in or out of court, on or off the record, and regardless of the motive with which they were made.

The tort of intentional infliction of emotional distress predicates liability on the basis of extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society. The conduct alleged must consist of more than mere insults, indignities, and annoyances. Rather, the intentional infliction of emotional distress will be found where severe mental anguish is inflicted through a deliberate and malicious campaign of harassment. The use of religious, ethnic, or racial aspersions to denigrate a person, although deplorable, is not sufficiently egregious conduct to sustain such a claim.

A claim for the negligent infliction of emotional distress generally must be premised upon the breach of a duty owed to the plaintiff which either unreasonably endangers the plaintiff’s physical safety or causes the plaintiff to fear for his or her own safety. As it is predicated on negligent conduct, a claim for the negligent infliction of emotional distress will fail where no allegations of negligence appear in the pleadings.

Here, Weigelt established, prima facie, his entitlement to dismissal of the malicious prosecution, false arrest, and abuse of process claims against him by demonstrating that he did not instigate the criminal action against Mahoney. The action, which was administratively dismissed, did not terminate in her favor, and the police determined probable cause existed where, as in this case, the charge was based on a civilian complaint alleging the commission of a specific crime. Although the complaint alleged that Weigelt participated in the criminal proceeding against Mahoney out of spite, a malicious motive alone does not give rise to a cause of action for abuse of process.

Weigelt further demonstrated that the complaint failed to state actionable claims against him for defamation and the infliction of emotional distress. The complaint failed to particularize the alleged defamatory statements or the resulting special damages to Mahoney. The statements made by Weigelt during the criminal proceeding were absolutely privileged.

As to the infliction of emotional distress claims, Weigelt established that his conduct was neither negligent nor so extreme and outrageous as to warrant viable claims for the intentional or negligent infliction of emotional distress against him.

Mahoney failed to raise triable issues warranting denial of Weigelt’s motion. Weigelt did not induce Mahoney’s arrest or instigate the criminal proceeding against her, and the statements he made during the criminal proceeding were privileged and could not serve as the basis for the abuse of process, defamation, or infliction of emotional distress claims. Even assuming, arguendo, that the statements were untruthful and not privileged, the complaint failed to specify any alleged special damages suffered by Mahoney. The emotional distress experienced inherent in any police arrest or detention was insufficient to sustain a claim of intentional infliction of emotional distress. Weigelt’s motion for dismissal of the complaint against him was granted.

Teehan and Mayowski also established their entitlement to dismissal of the false arrest and malicious prosecution claims against them. Significantly, the criminal proceeding was not terminated in Mahoney’s favor, and there was no allegation that Teehan and Mayowski went beyond merely furnishing a complaint to the police who were free to exercise their own judgment in determining that probable cause existed to file criminal charges against Mahoney.

Teehan and Mayowski also demonstrated entitlement to dismissal of the abuse of process claim against them. The complaint failed to allege that Teehan and Mayowski sought to improperly use the criminal proceeding against Mahoney after it was commenced, and their alleged malicious motive in making the complaint to the police alone did not give rise to a cause of action for abuse of process. Also, the complaint failed to state actionable claims against Teehan and Mayowski for defamation and the infliction of emotional distress. Statements made by Teehan and Mayowski in connection with the criminal proceeding were privileged and the emotional distress Malone allegedly experienced due to any arrest, detention, or court appearance was insufficient to sustain claims for intentional and negligent infliction of emotional distress.

Mahoney failed to raise triable issues warranting denial of the motion by Mayowski and Teehan. Information provided by an identified citizen accusing another individual of a specific crime is generally legally sufficient to provide the police with probable cause to arrest and probable cause to believe that a person committed a crime is a complete defense to a claim of malicious prosecution. Mahoney failed to adduce any evidence that Teehan and Mayowski sought to improperly use the criminal proceeding against her after it was commenced, and their alleged malicious motive in making the complaint to the police alone did not give rise to a cause of action for abuse of process. The statements made by Teehan and Mayowski in connection with the criminal proceeding were privileged, and the emotional distress experienced due to any arrest, detention, or court appearance was insufficient to sustain claims for intentional and negligent infliction of emotional distress. The motion by Teehan and Mayowski for dismissal of the complaint against them was granted.

Weigelt’s counterclaims against Mahoney for the infliction of emotional distress, abuse of process, and defamation were equally unavailing. The allegation that Mahoney caused her tenant to file a police complaint against Weigelt was not only unsubstantiated, but the counterclaims, which focused on Mahoney’s alleged malicious motives, failed to allege that the tenant’s complaint to the police was for a purpose not permitted by law, or that it was improperly used after process was issued. The same reasoning applied to the allegations concerning civil complaints Mahoney filed with the Town of Babylon about Weigelt’s purported erection of an unpermitted fence, the illegal rental of a section of his home, and the direction of flood lights towards her home. Notwithstanding Mahoney’s alleged malicious motivation in making the complaints, there was no proof that she utilized the process in a manner inconsistent with the purpose for which it was designed, or that the complaints were made without social excuse or justification.

The counterclaims contained in Weigelt’s answer failed to allege an actionable claim for the negligent infliction of emotional distress. Equally absent from those counterclaims were allegations that Mahoney engaged in conduct so extreme and outrageous as to make out a claim for the intentional infliction of emotional distress. The conduct underlying the abuse of process claim-amounting to mere insults, indignities, and annoyances-was insufficient for the purposes of making out an intentional infliction of emotional distress claim.

Weigelt’s allegations regarding the letters and flyers authored by Mahoney and her wife accusing him of harming their cats and requesting that he cease harassing her also were insufficient to demonstrate that Mahoney’s conduct was calculated to intentionally cause him distress or were so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency. In any event, those allegations were impermissibly duplicative of Weigelt’s defamation claim. Even assuming, arguendo, that Mahoney’s alleged placement of a shotgun shell on the “curtilage” of Weigelt’s home with the name “Sam” written on it constituted extreme and outrageous conduct sufficient to state an intentional infliction of emotional distress claim, the threat was not directed to Weigelt himself. Indeed, Weigelt’s allegations concerning that incident were belied by the testimony of Terry Mayowski that the name “Sam” referred to his child, and that the shotgun shell was placed in his, rather than Weigelt’s, front yard.

Weigelt’s defamation counterclaims were also insufficiently pled and inactionable. The counterclaims failed to allege the publication of defamatory statements accusing Weigelt of a serious crime, impugning his profession, or asserting that he had some loathsome disease and thus failed to state an actionable cause of action for slander per se. With respect to Weigelt’s remaining defamation counterclaims, the letters and flyers published by Mahoney to other surrounding neighbors concerning Weigelt’s alleged animal cruelty and harassment were subject to qualified privilege as they could be fairly thought of as the discharge of a public or private duty, and related to a common interest shared by neighbors. The allegations of Mahoney’s spite or ill will in publishing those statements were insufficient to preclude qualified privilege, and the burden was on Weigelt to prove that Mahoney published these statements with malice or reckless regard for truth. Weigelt’s defamation counterclaim failed to allege special damages with the required particularity.

An accusation of harassment was insufficient to support claim of slander per se. The pleadings illustrated the mutual acrimonious relationship between Weigelt and Mahoney, but Weigelt failed to demonstrate that Mahoney and her wife engaged in a prolonged campaign of harassment and intimidation against him. Mahoney’s motion for dismissal of the counterclaims was granted.