50 Realty Co. v. 135 East 50th Street Tenants Ass'n

40 A.D.2d 774, 337 N.Y.S.2d 614, 1972 N.Y. App. Div. LEXIS 3437

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1972
• Status: Published

Opinion

Order, Supreme Court, New York County, entered on December 15, 1970, as modified, on reargument, by order entered March 25, 1971, unanimously modified, on the law, to dismiss the counterclaim interposed by defendants-respondents, and otherwise affirmed, without costs and without disbursements. Appeal from order, Supreme Court, New York County, entered June 17, 1971, denying motion of plaintiffs-appellants to dismiss counterclaim, unanimously dismissed as moot, without costs and without disbursements. Following certain court proceedings between plaintiffs-appellants landlords and a number of tenants of their building, plaintiffs sued these defendants for libel said to have been contained in a newsletter of a tenants’ association. Special Term dismissed the complaint; though that dismissal was comprised within the notice of appeal, that item of appeal may be deemed abandoned: plaintiffs so stated, in effect, on the argument and neither briefed nor argued the point. Plaintiffs-appellants’ attack is on the counterclaim, first upheld by the granting of summary judgment thereon, and then, on reargument, being permitted to survive though summary judgment was then denied, and finally weathering an attack in a new motion. We conclude that, not only should summary judgment on the counterclaim have been denied, but it should have been dismissed without plaintiffs’ formal cross motion to that effect. (CPLR 3212, subd. [b].) It is impossible to discern within the outlines of the counterclaim as stated any viable cause of action: though founded on the alleged “ harassment ” of tenants by landlords in the bringing of many lawsuits, it spells out neither malicious prosecution nor abuse of process; prima facie tort is not charged, there being neither a showing of malice nor special damage; finally, though the Administrative Code is said to have been violated, no cause of action provided therein is pointed to. (See discussion, Chappelle v. Gross, 26 A D 2d 340.) This is not to say that defendants may possibly have some cause vis-á-vis plaintiffs based on facts not yet revealed to us, and we therefore make it plain that this disposition is not to be read to deprive defendants of the right to pursue any such claim should it exist. Since the counterclaim should not have survived the first attack on it, the later denial of dismissal (order entered June 17, 1971) becomes moot by reason of the first disposition. Concur— McGivern, J. P., Markewich, Nunez, Murphy and McNally, JJ.