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FILED: WESTCHESTER COUNTY CLERK 11/27/2023 11:16 AM INDEX NO. 62785/2023
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/27/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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TOWNSEND Y. LATHROP,
Index No. 62785/2023
Plaintiffs, REPLY AFFIRMATION IN
FURTHER SUPPORT OF
-against- DEFENDANTS’ MOTION TO
DISMISS
BIDE-A-WEE HOME ASSOCIATION, OCONEE
REGIONAL HUMANE SOCIETY, ELIZABETH ST. B.
MCCARTHY, GORDON HERLANDS RANDOLPH &
COX LLP, JOHN L. MORKEN, SPENCER L. REAMS,
FARRELL FRITZ PC. CLIFFORD S. ROBERT,
MICHAEL FARINA, JASON O. BRAIMAN, and
ROBERT & ROBERT PLLC ,
Defendants.
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PETER J. BIGING, ESQ., an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms, pursuant to CPLR § 2106, under penalty of perjury, as
follows:
1. I am a partner with the law firm of Goldberg Segalla, LLP, attorneys for Defendants
BIDE-A-WEE HOME ASSOCIATION (“Bide-A-Wee”) and OCONEE REGIONAL HUMANE
SOCIETY (“Oconee”) (collectively “Moving Defendants”).
2. I respectfully submit this Affirmation in Reply to Plaintiff’s Affirmation and
Memorandum of Law in Opposition, as well as in further support of Moving Defendants’ Motion
to Dismiss, which seeks an Order pursuant to CPLR §§3211(a) (1) and (a)(7) granting them
dismissal of the Complaint in its entirety, with prejudice, as against the Moving Defendants on the
grounds that: (1) the cause of action sounding in Judiciary Law Section 487 is not viable against
the non-attorney Moving Defendants; (2) the Complaint fails to plead a cognizable malicious
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prosecution claim against the Moving Defendants; and (3) the allegations of malicious prosecution
are refuted by the documentary evidence, which establishes both that there was probable cause to
pursue the underlying litigation in question, and that there was no malice on the part of the Moving
Defendants in pursuing same.
3. In responding to Bide-A-Wee and Oconee’s motion to dismiss the Judiciary Law
Section 487 claim to the extent it is asserted against them, Plaintiff concedes they are not properly
made the subject of such a claim, as the statute only applies to conduct by attorneys. See NYSCEF
Doc. No. 76; Memo of Law in Opposition (“Memo of Law in Opp.”) at page 11. While arguing
Bide-A-Wee and Oconee should nevertheless be subject to liability for any Judiciary Law Section
487 violation by attorneys working for them, Plaintiff fails to cite any statute or common law case
support for this argument. Because the law is clear that Judiciary Law Section 487 claims may
only be brought against attorneys (Alliance Network, LLC v. Sidley Austin LLP, 987 N.Y.S.2d 794,
809; Yalkowsky v. Century Apartments Assocs., 215 A.D.2d 214, 215 (1st Dep’t 1995); State Farm
Mut. Ins. Co. v. Anikeyeva, 35 Misc. 3d 1203[A], 950 N.Y.S.2d 726, 2012 NY Slip Op 50542[U]
(Sup. Ct., Nassau Cty. 2012)), such claim must be dismissed as against Bide-a-wee and Oconee as
a matter of law.
4. In any event, as will be discussed more fully below with regard to the malicious
prosecution claim, the documentary evidence makes clear that while Plaintiff disputes the legal
basis for the assertion of Bide-A-Wee’s and Oconee’s claims in the prior proceeding, there were
actions engaged in by Lathrop which were associated to substantial loss suffered by the Estate that
are not in dispute, which formed the basis of Bide-A-Wee and Oconee’s claims. As the Court of
Appeals made clear in Bill Birds v. Stein Law Firm, P.C., 35 N.Y.3d 173 (N.Y. 2020), the deceitful
conduct necessary to the making of a Judiciary Law § 487 claim is a misrepresentation of facts,
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not a mere making of a legal argument ultimately lacking in merit. Id. at 180 (“The statute does
not encompass the filing of a pleading or brief containing nonmeritorious legal arguments”).
5. In regards to the malicious prosecution claim, as Plaintiff concedes, the elements
of the tort of malicious prosecution of a civil action are: (1) prosecution of a civil action against
the plaintiff; (2) by or at the instance of the defendant; (3) without probable cause; (4) with malice;
(5) which terminated in favor of the plaintiff; and (6) causing special injury. Pirro v. Board of
Trustees of the Vil. of Groton, 203 A.D.3d 1263, 1264 (3d Dep’t 2022); Maspeth Fed. Sav. & Loan
Assn. v. Elizer, 197 A.D.3d 1253, 1254 (2d Dep’t 2021); Teller v Galak, 162 A.D.3d 959, 960 (2d
Dep’t 2018). The failure to prove any one of these elements warrants dismissal of the claim
(see Moorhouse v Standard, N.Y., 124 AD3d 1, 7 (1st Dep’t 2014); Maskantz v Hayes, 39 AD3d
211, 213 (1st Dep’t 2007)).
6. With respect to the requirement that Plaintiff plead a special injury, as discussed
in Moving Defendants’ original motion papers, pleading nothing more than “the physical,
psychological or financial demands of defending a lawsuit” is insufficient (Engel v. CBS, Inc., 93
N.Y.2d 195, 205 (1999), as are allegations regarding such things as “the loss of one client” and
“vague allegations of reputational loss.” See Muro-Light v. Farley, 95 A.D.3d 846 (2d Dep’t 2012);
Greco v. Christoffersen, 70 A.D.3d 769 (2d Dep’t 2010); Griffin v. Tedaldi, 228 A.D.2d 554 (2d
Dep’t 1996); Molinoff v. Sassower, 99 A.D.2d 528 (2d Dep’t 1984); Clark v. MacKay, 97 A.D.2d
394 (2d Dep’t 1983). See also, Kaye v. Trump, 58 A.D.3d 579, 580 (1st Dep’t 2009) (finding no
special damages where malicious prosecution plaintiff “conclusorily alleged that she was forced
by defendants’‘ acts ’to sell her condominium unit and move from the building”); Villacorta v.
Saks Inc., 2011 N.Y. Misc. LEXIS 3036, at *16 n.6 (Sup. Ct., N.Y. Cty., May 6, 2011) (holding
“cost of defense . . . including investigation costs” insufficient for special damages purposes); see
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also Hornstein v. Wolf, 109 A.D.2d 129, 133 (2d Dep’t 1985) (the mere bringing of a civil suit,
even if groundless and illmotivated, does not result in special damage or injury sufficient to sustain
an action for malicious prosecution). In opposing Bide-A-Wee’s motion, Plaintiff offers no case
law or other authority standing for the proposition that in the absence of special damages a
malicious prosecution claim cannot be maintained. And Plaintiff concedes that he is only alleging
amorphous, conceptual damages that in all respects fail to assert the requisite special damages
articulated by the New York courts. Plaintiff admits that the entirety of his alleged damages are
the psychic harm of allegedly “[b]eing a victim of an egregious illicit and unethical attempt to
distort the civil legal system for an unjust legal award through deceit . . . .” See Memo of Law in
Opp. at page 16. Having failed to identify any of the requisite special damages necessary to a
viable malicious prosecution claim, Plaintiff’s malicious prosecution claim must be dismissed as
well, for this reason.
7. While the failure to plead special damages is, alone, sufficient to require dismissal
of Plaintiff’s malicious prosecution claim, Plaintiff’s arguments regarding the documentary
evidence fail as well.1 According to Plaintiff, the “Moving Defendants proved their malicious
intent by using intentional misrepresentations of fact and law to multiple courts as opposed to
truthful presentations of fact and law because they did not believe they had probable cause to bring
their false alleged claims based on the actual facts and law.” See Memo of Law in Opp. at 11. But
the documentary evidence shows without question that there were legitimate reasons for Bide-A-
Wee and Oconee to have concerns about Lathrop’s conduct, and the enormous substantial damage
1
On a motion to dismiss, a court may consider documents referenced in a complaint, even if the pleading fails to
attach them and a court may take judicial notice of undisputed court records and files. Rowe Plastic Surgery of Long
Is., P.C. v. Oxford Health Ins. Co., Inc., 2023 N.Y. Misc. LEXIS 729, 2023 NY Slip Op 30536(U) (Queens Cty. Sup.
Ct. 2023); Dragonetti Bros. Landscaping Nursery & Florist v. Verizon N.Y., 71 Misc. 3d 1214[A], 2021 NY Slip Op
50375[U] (N.Y. Sup. Ct. 2021), aff'd, 208 A.D.3d 1125 (1st Dep’t 2022); Alliance Network, LLC v. Sidley Austin LLP,
987 N.Y.S.2d 794 (NY Cty. Sup. Ct. 2014).
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suffered by the Estate as a consequence. And as nicely laid out in the legal arguments presented
by the Robert & Robert law firm, there was a clearly valid and legitimate basis for the Moving
Defendants to believe the legal path they were taking was reasonable and appropriate.
8. First, Plaintiff concedes the documentary evidence available to Bide-A-Wee and
Oconee at the time indicated he appeared to have facilitated the unauthorized and imprudent
investment of, and consequent material loss of, significant Estate assets in ventures and entities
owned and controlled by Lathrop (See Biging Aff. ¶¶ 17-19; Complaint Ex. 4, NYSCEF Doc. 5¶¶
23-26). And Plaintiff even admitted there was a conflict of interest in one of the dealings. See
Biging Aff. ¶21; Complaint Ex. 6, NYSCEF Doc. No. 7, ¶43. While Plaintiff argues that those
losses were not his fault and that he and the Executor were merely carrying out the wishes - not
expressed in the Will - of the Decedent, he doesn’t dispute that what the documentary evidence
shows – i.e., that he was involved in these transactions. Plaintiff also admits that he borrowed
monies, which he claims to have paid back, but points to no specific documentary evidence to
corroborate that. See NYSCEF DOC No. 16 pages 12 to 22.
9. Second, in the Memo of Law in Support of Robert & Robert’s Motion to Dismiss
(NYSCEF Doc No. 64), “[t]he surrogate’s court had the authority to appoint the charities as
limited administrators of the estate for the purpose of bringing any action against Lathrop that the
prior executor could have brought.”
“ SCPA § 702(9) expressly empowers the Surrogate’s Court to grant letters to ‘the
holder thereof” so that the holder can ‘commence and maintain any action or
proceeding against the fiduciary,’ i.e., the executor of the estate, ‘or against anyone
else against whom the fiduciary fails or refuses to bring such a proceeding’
(emphasis added) – i.e., anyone the executor could have sued but didn’t. Clearly,
the SCPA authorizes the Surrogate’s Court to ‘grant[] [the Charities] authority to
step into the shoes of the Estate to bring a legal malpractice cause of action against
the Executor’s attorney that the Executor wouldn’t bring’ (Complaint at p. 3).”
Id. at pages 12-18.
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10. Importantly, “the ‘granting of letters’ under SCPA § 702 requires a ‘minimum
quantity of proof’ on application. In re Quinn, No. 2016-390356/F, 2018 WL 3612995, at *2 (Surr.
Ct. Nassau County Jul. 11, 2018). Meaning, it is not automatic or ministerial; the granting of the
letters was based on the Surrogate’s Court finding of “sufficient reason” for issuing them. Id.
Furthermore, “New York cases hold that when a judgment or decree was rendered against the
malicious prosecution plaintiff in the prior action of which he complains, that fact is either
conclusive or prima facie evidence of probable cause for the prior action, which is not overcome
by the subsequent reversal or setting aside of the judgment or decree.” Malin v. Deutsch & Frey,
142 A.D.2d 632, 632 (2d Dep’t 1988) (emphasis added; internal quotations omitted). See Lugo v.
Corso, 215 A.D.3d 944, 945 (2d Dep’t 2023). Accordingly, a review of the documentary evidence
reveals Bide-A-Wee and Oconee acted with ample probable cause in commencing the original
matter against Plaintiff.
11. While Plaintiff argues there are issues of fact regarding whether he engaged in
misconduct, and questions of law regarding whether Bide-A-Wee and Oconee had the legal
authority to pursue the claims asserted against him, the fact of the matter is that this does nothing
for his argument, and actually undermines the premise for his malicious prosecution claim.
Effectively, in making this argument Lathrop concedes the issue: the documentary evidence proves
unequivocally that the Moving Defendants had probable cause to pursue the claims at issue.
12. In pursuing a legal malpractice claim, it is Plaintiff’s burden to allege a lack of
probable cause. See Facebook, Inc. v. DLA Piper LLP (US), 134 A.D.3d 610, 613-14 (1st Dep’t
2015) (quoting Engel v. CBS, Inc., 93 N.Y.2d 195, 204 (1999)). Probable cause is “the knowledge
of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has
lawful grounds for prosecuting the defendant in the manner complained of.” Id. at 614. The
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documentary evidence before the Court on this motion notwithstanding, Plaintiff fails to cite to
any evidence or law that would provide a basis for the Court to conclude that Bide-A-Wee and
Oconee had reason to believe they had no factual or legal basis for pursuing the claims asserted
against him in the underlying action.
13. In addition to eviscerating his argument that he has pled the lack of probable cause,
the documentary evidence put before the Court on this motion makes clear that Plaintiff will not
be able to establish the Moving Defendants acted with actual malice. Nardelli v. Stamberg, 44
N.Y.2d 500 (1978); Engel at 204. See also Laurie Marie M. v. Jeffrey T. M., 159 A.D.2d 52, 59
(2d Dep’t 1990) (tortfeasor’s actual malice is a necessary element of a cause of action for malicious
prosecution); Pantazis v. Bleau Towing Serv., Inc., 145 A.D.2d 816 (3d Dep’t 1988).
14. An action brought with actual malice is one brought with consciousness of the
falsity of the claims asserted. See, e.g., Santoro v. Town of Smithtown, 40 A.D.3d 736, 738 (2d
Dep’t 2007); Hornstein v Wolf, 109 A.D.2d 129, 133 (2d Dep’t 1985); Munoz v. New York, 18
N.Y.2d 6, 9 (1966). And even the falseness of one allegation in a complaint does not support an
inference of malice where there existed probable cause for the underlying action as a whole. Pirro
v. Board of Trustees of the Vil. of Groton, 203 A.D.3d 1263, 1265 (3d Dep’t 2022); 347 Cent. Park
Assoc., LLC v Pine Top Assoc., LLC, 144 A.D.3d 785, 786 (2d Dep’t 2016); Wilhelmina Models,
Inc. v. Fleisher, 19 A.D.3d 267, 270 (1st Dep’t 2005) (citing Brown v Sears Roebuck & Co., 297
A.D. 2d 205 (1st Dep’t 2002)).
15. As noted above, Plaintiff alleges Bide-A-Wee and Oconee evidenced malicious
intent by using intentional misrepresentations of fact and law to multiple courts as opposed to
truthful presentations of fact and law because they did not believe they had probable cause to bring
their false alleged claims based on the actual facts and law. See Complaint, NYCEF Doc. No. 1,
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paragraph 37. Plaintiff also contends that Defendants' malice is further proven by their continuing
to make intentional misrepresentations to the Appellate Court in their supporting brief that had
already been exposed as being intentional misrepresentations in the text of the Second Decision
and Order, NYSCEF Doc. No. 16. See Memo of Law in Opp. at page 15.
16. The problem with these arguments is that they substitute the issue of a meritorious
legal argument with the question of whether the action based on the legal argument was pursued
maliciously. Based on the documentary evidence before the Court, there is simply no denying that
Bide-A-Wee and Oconee not only had reasonable factual grounds to pursue the claims asserted in
the underlying action, but also that they were guided by the advice of their lawyers that they had a
valid legal basis for pursuing the claims. As such, there is no reasonable basis for a conclusion to
be drawn that Bide-A-Wee and Oconee acted with malice. And because it cannot be reasonably
determined that in these circumstances Bide-A-Wee and Oconee acted with malice in following
the legal advice of the law firms that represented them, Plaintiff’s malicious prosecution claim
must be dismissed for this reason as well.
17. In Hes v. Zirkin, 2023 N.Y. Misc. LEXIS 4129, *1, 2023 NY Slip Op 32817(U)
(NY Cty. Sup. Ct. 2023), the Court, in dismissing a malicious prosecution claim pursuant to
CPLR § 3211(a)(7) based on its determination that the allegations – when read in conjunction
with the documentation referenced in the plaintiff’s complaint – failed to plead actual malice,
said:
“Here, although Plaintiff repeatedly states that Defendants acted with malice, the
Amended Complaint makes only vague and conclusory allegations about A.Z. It
claims that he joined S.Z. in a conspiracy to instigate a criminal prosecution against
Plaintiff and that they adopted one another's lies in statements to the police in an
attempt to mislead police and prosecutors. These allegations are nothing but
conclusory statements which are inherently incredible when read in conjunction
with the documentation that Plaintiff herself submits with her Amended Complaint.
For instance, despite Plaintiff's contention that A.Z. engaged in a lengthy campaign
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to fabricate evidence against her by complaining about numerous phone calls she
claims to have never made, there is ample documentary evidence annexed to her
Amended Complaint that indicates that much of what Defendants told the police
about Plaintiff's communications had some basis in truth.”
Id. at page 9.
18. Similarly, in conclusory fashion, Plaintiff uses the word “malice” but the
documentary evidence either attached to or referenced in Plaintiff’s Complaint disproves any such
allegation. The fact that the trial court in the underlying action, in reversing itself, dismissed the
claims against Plaintiff (which are pending on appeal) based on lack of standing, does not equate
to malice. Accordingly, both the causes of action asserted in Plaintiff’s pleading are deficient as a
matter of law, and should be dismissed with prejudice.
WHEREFORE, Defendants BIDE-A-WEE HOME ASSOCIATION and OCONEE
REGIONAL HUMANE SOCIETY respectfully request the Court issue an Order, pursuant to
CPLR §§3211(a)(1) and (a)(7), granting them dismissal of the Complaint in its entirety, with
prejudice, as against the Moving Defendants on the grounds that: (1) the cause of action
sounding in Judiciary Law Section 487 is not viable against the non-attorney Moving
Defendants BIDE-A-WEE HOME ASSOCIATION and OCONEE REGIONAL HUMANE
SOCIETY; (2) the documentary evidence proves conclusively that Lathrop cannot establish
the requisite elements of his malicious prosecution claim; and (3) the Complaint fails to plead
a cognizable malicious prosecution claim against the Moving Defendants.
Dated: New York, New York
November 20, 2023
Respectfully submitted,
GOLDBERG SEGALLA LLP
By: ________________________
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Peter J. Biging
Attorneys for Defendants
Bide-A-Wee Home Association and Oconee
Regional Humane Society
711 3rd Avenue, Suite 1900
New York, NY 10017
646-292-8711
pbiging@goldbergsegalla.com
TO: All Counsel of Record (via NYSCEF)
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CERTIFICATE OF COMPLIANCE
I hereby certify that, pursuant to 22 NYCRR § 202.5(a) and § 202.8-b, the foregoing
Affirmation was prepared on a computer with a proportionally spaced typeface with a font size of
12 and that total number of words in this brief, inclusive of point headings and footnotes, and
exclusive of the caption, table of contents, signature block, and certificate of compliance is 2,793.
Date: November 20, 2023
______________________
Peter J. Biging, Esq.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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TOWNSEND Y. LATHROP,
Index No. 62785/2023
Plaintiffs,
CERTIFICATION OF WORD
COUNT FOR DEFENDANTS’
-against- REPLY AFFIRMATION IN
FURTHER SUPPORT OF
BIDE-A-WEE HOME ASSOCIATION, OCONEE DEFENDANTS’ MOTION TO
REGIONAL HUMANE SOCIETY, ELIZABETH ST. B. DISMISS
MCCARTHY, GORDON HERLANDS RANDOLPH &
COX LLP, JOHN L. MORKEN, SPENCER L. REAMS,
FARRELL FRITZ PC. CLIFFORD S. ROBERT,
MICHAEL FARINA, JASON O. BRAIMAN, and
ROBERT & ROBERT PLLC ,
Defendants.
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Pursuant to section 202.8-b of the Uniform Civil Rules, I hereby certify that the number of
words in Peter J. Biging’s Reply Affirmation In Further Support of Defendants’ Motion To
Dismiss is 2,793. I have relied on the word count of the word-processing system used to prepare
the document.
Dated: New York, New York
November 20, 2023
Respectfully submitted,
GOLDBERG SEGALLA LLP
By: ________________________
Peter J. Biging
Attorneys for Defendants
Bide-A-Wee Home Association and Oconee
Regional Humane Society
711 3rd Avenue, Suite 1900
New York, NY 10017
646-292-8711
TO: All Counsel of Records (via NYSCEF) pbiging@goldbergsegalla.com
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FILED: WESTCHESTER COUNTY CLERK 11/27/2023 11:16 AM INDEX NO. 62785/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/27/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ---------------------------------------------------------------X TOWNSEND Y. LATHROP, Index No. 62785/2023 Plaintiffs, REPLY AFFIRMATION IN FURTHER SUPPORT OF -against- DEFENDANTS’ MOTION TO DISMISS BIDE-A-WEE HOME ASSOCIATION, OCONEE REGIONAL HUMANE SOCIETY, ELIZABETH ST. B. MCCARTHY, GORDON HERLANDS RANDOLPH & COX LLP, JOHN L. MORKEN, SPENCER L. REAMS, FARRELL FRITZ PC. CLIFFORD S. ROBERT, MICHAEL FARINA, JASON O. BRAIMAN, and ROBERT & ROBERT PLLC , Defendants. ---------------------------------------------------------------X PETER J. BIGING, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms, pursuant to CPLR § 2106, under penalty of perjury, as follows: 1. I am a partner with the law firm of Goldberg Segalla, LLP, attorneys for Defendants BIDE-A-WEE HOME ASSOCIATION (“Bide-A-Wee”) and OCONEE REGIONAL HUMANE SOCIETY (“Oconee”) (collectively “Moving Defendants”). 2. I respectfully submit this Affirmation in Reply to Plaintiff’s Affirmation and Memorandum of Law in Opposition, as well as in further support of Moving Defendants’ Motion to Dismiss, which seeks an Order pursuant to CPLR §§3211(a) (1) and (a)(7) granting them dismissal of the Complaint in its entirety, with prejudice, as against the Moving Defendants on the grounds that: (1) the cause of action sounding in Judiciary Law Section 487 is not viable against the non-attorney Moving Defendants; (2) the Complaint fails to plead a cognizable malicious 38412404.v1 1 of 12 FILED: WESTCHESTER COUNTY CLERK 11/27/2023 11:16 AM INDEX NO. 62785/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/27/2023 prosecution claim against the Moving Defendants; and (3) the allegations of malicious prosecution are refuted by the documentary evidence, which establishes both that there was probable cause to pursue the underlying litigation in question, and that there was no malice on the part of the Moving Defendants in pursuing same. 3. In responding to Bide-A-Wee and Oconee’s motion to dismiss the Judiciary Law Section 487 claim to the extent it is asserted against them, Plaintiff concedes they are not properly made the subject of such a claim, as the statute only applies to conduct by attorneys. See NYSCEF Doc. No. 76; Memo of Law in Opposition (“Memo of Law in Opp.”) at page 11. While arguing Bide-A-Wee and Oconee should nevertheless be subject to liability for any Judiciary Law Section 487 violation by attorneys working for them, Plaintiff fails to cite any statute or common law case support for this argument. Because the law is clear that Judiciary Law Section 487 claims may only be brought against attorneys (Alliance Network, LLC v. Sidley Austin LLP, 987 N.Y.S.2d 794, 809; Yalkowsky v. Century Apartments Assocs., 215 A.D.2d 214, 215 (1st Dep’t 1995); State Farm Mut. Ins. Co. v. Anikeyeva, 35 Misc. 3d 1203[A], 950 N.Y.S.2d 726, 2012 NY Slip Op 50542[U] (Sup. Ct., Nassau Cty. 2012)), such claim must be dismissed as against Bide-a-wee and Oconee as a matter of law. 4. In any event, as will be discussed more fully below with regard to the malicious prosecution claim, the documentary evidence makes clear that while Plaintiff disputes the legal basis for the assertion of Bide-A-Wee’s and Oconee’s claims in the prior proceeding, there were actions engaged in by Lathrop which were associated to substantial loss suffered by the Estate that are not in dispute, which formed the basis of Bide-A-Wee and Oconee’s claims. As the Court of Appeals made clear in Bill Birds v. Stein Law Firm, P.C., 35 N.Y.3d 173 (N.Y. 2020), the deceitful conduct necessary to the making of a Judiciary Law § 487 claim is a misrepresentation of facts, 38412404.v1 2 of 12 FILED: WESTCHESTER COUNTY CLERK 11/27/2023 11:16 AM INDEX NO. 62785/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/27/2023 not a mere making of a legal argument ultimately lacking in merit. Id. at 180 (“The statute does not encompass the filing of a pleading or brief containing nonmeritorious legal arguments”). 5. In regards to the malicious prosecution claim, as Plaintiff concedes, the elements of the tort of malicious prosecution of a civil action are: (1) prosecution of a civil action against the plaintiff; (2) by or at the instance of the defendant; (3) without probable cause; (4) with malice; (5) which terminated in favor of the plaintiff; and (6) causing special injury. Pirro v. Board of Trustees of the Vil. of Groton, 203 A.D.3d 1263, 1264 (3d Dep’t 2022); Maspeth Fed. Sav. & Loan Assn. v. Elizer, 197 A.D.3d 1253, 1254 (2d Dep’t 2021); Teller v Galak, 162 A.D.3d 959, 960 (2d Dep’t 2018). The failure to prove any one of these elements warrants dismissal of the claim (see Moorhouse v Standard, N.Y., 124 AD3d 1, 7 (1st Dep’t 2014); Maskantz v Hayes, 39 AD3d 211, 213 (1st Dep’t 2007)). 6. With respect to the requirement that Plaintiff plead a special injury, as discussed in Moving Defendants’ original motion papers, pleading nothing more than “the physical, psychological or financial demands of defending a lawsuit” is insufficient (Engel v. CBS, Inc., 93 N.Y.2d 195, 205 (1999), as are allegations regarding such things as “the loss of one client” and “vague allegations of reputational loss.” See Muro-Light v. Farley, 95 A.D.3d 846 (2d Dep’t 2012); Greco v. Christoffersen, 70 A.D.3d 769 (2d Dep’t 2010); Griffin v. Tedaldi, 228 A.D.2d 554 (2d Dep’t 1996); Molinoff v. Sassower, 99 A.D.2d 528 (2d Dep’t 1984); Clark v. MacKay, 97 A.D.2d 394 (2d Dep’t 1983). See also, Kaye v. Trump, 58 A.D.3d 579, 580 (1st Dep’t 2009) (finding no special damages where malicious prosecution plaintiff “conclusorily alleged that she was forced by defendants’‘ acts ’to sell her condominium unit and move from the building”); Villacorta v. Saks Inc., 2011 N.Y. Misc. LEXIS 3036, at *16 n.6 (Sup. Ct., N.Y. Cty., May 6, 2011) (holding “cost of defense . . . including investigation costs” insufficient for special damages purposes); see 38412404.v1 3 of 12 FILED: WESTCHESTER COUNTY CLERK 11/27/2023 11:16 AM INDEX NO. 62785/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/27/2023 also Hornstein v. Wolf, 109 A.D.2d 129, 133 (2d Dep’t 1985) (the mere bringing of a civil suit, even if groundless and illmotivated, does not result in special damage or injury sufficient to sustain an action for malicious prosecution). In opposing Bide-A-Wee’s motion, Plaintiff offers no case law or other authority standing for the proposition that in the absence of special damages a malicious prosecution claim cannot be maintained. And Plaintiff concedes that he is only alleging amorphous, conceptual damages that in all respects fail to assert the requisite special damages articulated by the New York courts. Plaintiff admits that the entirety of his alleged damages are the psychic harm of allegedly “[b]eing a victim of an egregious illicit and unethical attempt to distort the civil legal system for an unjust legal award through deceit . . . .” See Memo of Law in Opp. at page 16. Having failed to identify any of the requisite special damages necessary to a viable malicious prosecution claim, Plaintiff’s malicious prosecution claim must be dismissed as well, for this reason. 7. While the failure to plead special damages is, alone, sufficient to require dismissal of Plaintiff’s malicious prosecution claim, Plaintiff’s arguments regarding the documentary evidence fail as well.1 According to Plaintiff, the “Moving Defendants proved their malicious intent by using intentional misrepresentations of fact and law to multiple courts as opposed to truthful presentations of fact and law because they did not believe they had probable cause to bring their false alleged claims based on the actual facts and law.” See Memo of Law in Opp. at 11. But the documentary evidence shows without question that there were legitimate reasons for Bide-A- Wee and Oconee to have concerns about Lathrop’s conduct, and the enormous substantial damage 1 On a motion to dismiss, a court may consider documents referenced in a complaint, even if the pleading fails to attach them and a court may take judicial notice of undisputed court records and files. Rowe Plastic Surgery of Long Is., P.C. v. Oxford Health Ins. Co., Inc., 2023 N.Y. Misc. LEXIS 729, 2023 NY Slip Op 30536(U) (Queens Cty. Sup. Ct. 2023); Dragonetti Bros. Landscaping Nursery & Florist v. Verizon N.Y., 71 Misc. 3d 1214[A], 2021 NY Slip Op 50375[U] (N.Y. Sup. Ct. 2021), aff'd, 208 A.D.3d 1125 (1st Dep’t 2022); Alliance Network, LLC v. Sidley Austin LLP, 987 N.Y.S.2d 794 (NY Cty. Sup. Ct. 2014). 38412404.v1 4 of 12 FILED: WESTCHESTER COUNTY CLERK 11/27/2023 11:16 AM INDEX NO. 62785/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/27/2023 suffered by the Estate as a consequence. And as nicely laid out in the legal arguments presented by the Robert & Robert law firm, there was a clearly valid and legitimate basis for the Moving Defendants to believe the legal path they were taking was reasonable and appropriate. 8. First, Plaintiff concedes the documentary evidence available to Bide-A-Wee and Oconee at the time indicated he appeared to have facilitated the unauthorized and imprudent investment of, and consequent material loss of, significant Estate assets in ventures and entities owned and controlled by Lathrop (See Biging Aff. ¶¶ 17-19; Complaint Ex. 4, NYSCEF Doc. 5¶¶ 23-26). And Plaintiff even admitted there was a conflict of interest in one of the dealings. See Biging Aff. ¶21; Complaint Ex. 6, NYSCEF Doc. No. 7, ¶43. While Plaintiff argues that those losses were not his fault and that he and the Executor were merely carrying out the wishes - not expressed in the Will - of the Decedent, he doesn’t dispute that what the documentary evidence shows – i.e., that he was involved in these transactions. Plaintiff also admits that he borrowed monies, which he claims to have paid back, but points to no specific documentary evidence to corroborate that. See NYSCEF DOC No. 16 pages 12 to 22. 9. Second, in the Memo of Law in Support of Robert & Robert’s Motion to Dismiss (NYSCEF Doc No. 64), “[t]he surrogate’s court had the authority to appoint the charities as limited administrators of the estate for the purpose of bringing any action against Lathrop that the prior executor could have brought.” “ SCPA § 702(9) expressly empowers the Surrogate’s Court to grant letters to ‘the holder thereof” so that the holder can ‘commence and maintain any action or proceeding against the fiduciary,’ i.e., the executor of the estate, ‘or against anyone else against whom the fiduciary fails or refuses to bring such a proceeding’ (emphasis added) – i.e., anyone the executor could have sued but didn’t. Clearly, the SCPA authorizes the Surrogate’s Court to ‘grant[] [the Charities] authority to step into the shoes of the Estate to bring a legal malpractice cause of action against the Executor’s attorney that the Executor wouldn’t bring’ (Complaint at p. 3).” Id. at pages 12-18. 38412404.v1 5 of 12 FILED: WESTCHESTER COUNTY CLERK 11/27/2023 11:16 AM INDEX NO. 62785/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/27/2023 10. Importantly, “the ‘granting of letters’ under SCPA § 702 requires a ‘minimum quantity of proof’ on application. In re Quinn, No. 2016-390356/F, 2018 WL 3612995, at *2 (Surr. Ct. Nassau County Jul. 11, 2018). Meaning, it is not automatic or ministerial; the granting of the letters was based on the Surrogate’s Court finding of “sufficient reason” for issuing them. Id. Furthermore, “New York cases hold that when a judgment or decree was rendered against the malicious prosecution plaintiff in the prior action of which he complains, that fact is either conclusive or prima facie evidence of probable cause for the prior action, which is not overcome by the subsequent reversal or setting aside of the judgment or decree.” Malin v. Deutsch & Frey, 142 A.D.2d 632, 632 (2d Dep’t 1988) (emphasis added; internal quotations omitted). See Lugo v. Corso, 215 A.D.3d 944, 945 (2d Dep’t 2023). Accordingly, a review of the documentary evidence reveals Bide-A-Wee and Oconee acted with ample probable cause in commencing the original matter against Plaintiff. 11. While Plaintiff argues there are issues of fact regarding whether he engaged in misconduct, and questions of law regarding whether Bide-A-Wee and Oconee had the legal authority to pursue the claims asserted against him, the fact of the matter is that this does nothing for his argument, and actually undermines the premise for his malicious prosecution claim. Effectively, in making this argument Lathrop concedes the issue: the documentary evidence proves unequivocally that the Moving Defendants had probable cause to pursue the claims at issue. 12. In pursuing a legal malpractice claim, it is Plaintiff’s burden to allege a lack of probable cause. See Facebook, Inc. v. DLA Piper LLP (US), 134 A.D.3d 610, 613-14 (1st Dep’t 2015) (quoting Engel v. CBS, Inc., 93 N.Y.2d 195, 204 (1999)). Probable cause is “the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of.” Id. at 614. The 38412404.v1 6 of 12 FILED: WESTCHESTER COUNTY CLERK 11/27/2023 11:16 AM INDEX NO. 62785/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/27/2023 documentary evidence before the Court on this motion notwithstanding, Plaintiff fails to cite to any evidence or law that would provide a basis for the Court to conclude that Bide-A-Wee and Oconee had reason to believe they had no factual or legal basis for pursuing the claims asserted against him in the underlying action. 13. In addition to eviscerating his argument that he has pled the lack of probable cause, the documentary evidence put before the Court on this motion makes clear that Plaintiff will not be able to establish the Moving Defendants acted with actual malice. Nardelli v. Stamberg, 44 N.Y.2d 500 (1978); Engel at 204. See also Laurie Marie M. v. Jeffrey T. M., 159 A.D.2d 52, 59 (2d Dep’t 1990) (tortfeasor’s actual malice is a necessary element of a cause of action for malicious prosecution); Pantazis v. Bleau Towing Serv., Inc., 145 A.D.2d 816 (3d Dep’t 1988). 14. An action brought with actual malice is one brought with consciousness of the falsity of the claims asserted. See, e.g., Santoro v. Town of Smithtown, 40 A.D.3d 736, 738 (2d Dep’t 2007); Hornstein v Wolf, 109 A.D.2d 129, 133 (2d Dep’t 1985); Munoz v. New York, 18 N.Y.2d 6, 9 (1966). And even the falseness of one allegation in a complaint does not support an inference of malice where there existed probable cause for the underlying action as a whole. Pirro v. Board of Trustees of the Vil. of Groton, 203 A.D.3d 1263, 1265 (3d Dep’t 2022); 347 Cent. Park Assoc., LLC v Pine Top Assoc., LLC, 144 A.D.3d 785, 786 (2d Dep’t 2016); Wilhelmina Models, Inc. v. Fleisher, 19 A.D.3d 267, 270 (1st Dep’t 2005) (citing Brown v Sears Roebuck & Co., 297 A.D. 2d 205 (1st Dep’t 2002)). 15. As noted above, Plaintiff alleges Bide-A-Wee and Oconee evidenced malicious intent by using intentional misrepresentations of fact and law to multiple courts as opposed to truthful presentations of fact and law because they did not believe they had probable cause to bring their false alleged claims based on the actual facts and law. See Complaint, NYCEF Doc. No. 1, 38412404.v1 7 of 12 FILED: WESTCHESTER COUNTY CLERK 11/27/2023 11:16 AM INDEX NO. 62785/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/27/2023 paragraph 37. Plaintiff also contends that Defendants' malice is further proven by their continuing to make intentional misrepresentations to the Appellate Court in their supporting brief that had already been exposed as being intentional misrepresentations in the text of the Second Decision and Order, NYSCEF Doc. No. 16. See Memo of Law in Opp. at page 15. 16. The problem with these arguments is that they substitute the issue of a meritorious legal argument with the question of whether the action based on the legal argument was pursued maliciously. Based on the documentary evidence before the Court, there is simply no denying that Bide-A-Wee and Oconee not only had reasonable factual grounds to pursue the claims asserted in the underlying action, but also that they were guided by the advice of their lawyers that they had a valid legal basis for pursuing the claims. As such, there is no reasonable basis for a conclusion to be drawn that Bide-A-Wee and Oconee acted with malice. And because it cannot be reasonably determined that in these circumstances Bide-A-Wee and Oconee acted with malice in following the legal advice of the law firms that represented them, Plaintiff’s malicious prosecution claim must be dismissed for this reason as well. 17. In Hes v. Zirkin, 2023 N.Y. Misc. LEXIS 4129, *1, 2023 NY Slip Op 32817(U) (NY Cty. Sup. Ct. 2023), the Court, in dismissing a malicious prosecution claim pursuant to CPLR § 3211(a)(7) based on its determination that the allegations – when read in conjunction with the documentation referenced in the plaintiff’s complaint – failed to plead actual malice, said: “Here, although Plaintiff repeatedly states that Defendants acted with malice, the Amended Complaint makes only vague and conclusory allegations about A.Z. It claims that he joined S.Z. in a conspiracy to instigate a criminal prosecution against Plaintiff and that they adopted one another's lies in statements to the police in an attempt to mislead police and prosecutors. These allegations are nothing but conclusory statements which are inherently incredible when read in conjunction with the documentation that Plaintiff herself submits with her Amended Complaint. For instance, despite Plaintiff's contention that A.Z. engaged in a lengthy campaign 38412404.v1 8 of 12 FILED: WESTCHESTER COUNTY CLERK 11/27/2023 11:16 AM INDEX NO. 62785/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/27/2023 to fabricate evidence against her by complaining about numerous phone calls she claims to have never made, there is ample documentary evidence annexed to her Amended Complaint that indicates that much of what Defendants told the police about Plaintiff's communications had some basis in truth.” Id. at page 9. 18. Similarly, in conclusory fashion, Plaintiff uses the word “malice” but the documentary evidence either attached to or referenced in Plaintiff’s Complaint disproves any such allegation. The fact that the trial court in the underlying action, in reversing itself, dismissed the claims against Plaintiff (which are pending on appeal) based on lack of standing, does not equate to malice. Accordingly, both the causes of action asserted in Plaintiff’s pleading are deficient as a matter of law, and should be dismissed with prejudice. WHEREFORE, Defendants BIDE-A-WEE HOME ASSOCIATION and OCONEE REGIONAL HUMANE SOCIETY respectfully request the Court issue an Order, pursuant to CPLR §§3211(a)(1) and (a)(7), granting them dismissal of the Complaint in its entirety, with prejudice, as against the Moving Defendants on the grounds that: (1) the cause of action sounding in Judiciary Law Section 487 is not viable against the non-attorney Moving Defendants BIDE-A-WEE HOME ASSOCIATION and OCONEE REGIONAL HUMANE SOCIETY; (2) the documentary evidence proves conclusively that Lathrop cannot establish the requisite elements of his malicious prosecution claim; and (3) the Complaint fails to plead a cognizable malicious prosecution claim against the Moving Defendants. Dated: New York, New York November 20, 2023 Respectfully submitted, GOLDBERG SEGALLA LLP By: ________________________ 38412404.v1 9 of 12 FILED: WESTCHESTER COUNTY CLERK 11/27/2023 11:16 AM INDEX NO. 62785/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/27/2023 Peter J. Biging Attorneys for Defendants Bide-A-Wee Home Association and Oconee Regional Humane Society 711 3rd Avenue, Suite 1900 New York, NY 10017 646-292-8711 pbiging@goldbergsegalla.com TO: All Counsel of Record (via NYSCEF) 38412404.v1 10 of 12 FILED: WESTCHESTER COUNTY CLERK 11/27/2023 11:16 AM INDEX NO. 62785/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/27/2023 CERTIFICATE OF COMPLIANCE I hereby certify that, pursuant to 22 NYCRR § 202.5(a) and § 202.8-b, the foregoing Affirmation was prepared on a computer with a proportionally spaced typeface with a font size of 12 and that total number of words in this brief, inclusive of point headings and footnotes, and exclusive of the caption, table of contents, signature block, and certificate of compliance is 2,793. Date: November 20, 2023 ______________________ Peter J. Biging, Esq. 38412404.v1 11 of 12 FILED: WESTCHESTER COUNTY CLERK 11/27/2023 11:16 AM INDEX NO. 62785/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/27/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ---------------------------------------------------------------X TOWNSEND Y. LATHROP, Index No. 62785/2023 Plaintiffs, CERTIFICATION OF WORD COUNT FOR DEFENDANTS’ -against- REPLY AFFIRMATION IN FURTHER SUPPORT OF BIDE-A-WEE HOME ASSOCIATION, OCONEE DEFENDANTS’ MOTION TO REGIONAL HUMANE SOCIETY, ELIZABETH ST. B. DISMISS MCCARTHY, GORDON HERLANDS RANDOLPH & COX LLP, JOHN L. MORKEN, SPENCER L. REAMS, FARRELL FRITZ PC. CLIFFORD S. ROBERT, MICHAEL FARINA, JASON O. BRAIMAN, and ROBERT & ROBERT PLLC , Defendants. ---------------------------------------------------------------X Pursuant to section 202.8-b of the Uniform Civil Rules, I hereby certify that the number of words in Peter J. Biging’s Reply Affirmation In Further Support of Defendants’ Motion To Dismiss is 2,793. I have relied on the word count of the word-processing system used to prepare the document. Dated: New York, New York November 20, 2023 Respectfully submitted, GOLDBERG SEGALLA LLP By: ________________________ Peter J. Biging Attorneys for Defendants Bide-A-Wee Home Association and Oconee Regional Humane Society 711 3rd Avenue, Suite 1900 New York, NY 10017 646-292-8711 TO: All Counsel of Records (via NYSCEF) pbiging@goldbergsegalla.com 38412404.v1 12 of 12