2005 Ct. Sup. 15415
No. FST CV 05 4005128Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
November 29, 2005
MEMORANDUM OF DECISION
WILLIAM B. LEWIS, JUDGE TRIAL REFEREE.
Roy Abramowitz and Janice Abramowitz, the plaintiffs, filed a six-count complaint against the defendants, Boris Pogacnik and Tatiania Pogacnik. The complaint alleges the following: count one, malicious prosecution against Tatiania Pogacnik; count two, malicious prosecution against both defendants; counts three and four, intentional infliction of emotional distress against Boris Pogacnik; count five, trespass against Tatiania Pogacnik; and count six, defamation against Boris Pogacnik.
In count one, the plaintiffs allege that on May 16, 1999, the defendant, Tatjana Pogacnik, “falsely and maliciously” complained to the New Canaan police department that Roy Abramowitz permitted his dog to bark excessively.[1] The plaintiffs further allege that as a result, Roy Abramowitz was prosecuted in Superior Court and was ultimately found not guilty after a trial. The plaintiffs further assert that as a result of the false statements, Roy Abramowitz was forced to pay legal fees, appear in court on numerous occasions as an accused criminal, endure public humiliation and suffered extreme emotional distress. The plaintiffs also allege that Tatjana Pogancik’s actions were part of a continuing pattern of intimidation and harassment against Roy Abramowitz, and also were inspired by malice with express intent to initiate prosecution against Roy Abramowitz, who is Jewish-American.
In count two the plaintiffs allege that on December 4, 1999, the defendants falsely and maliciously accused the plaintiff, Janice Abramowitz, of trespassing on their property and removing a non-trespassing sign that was located on a tree on the defendants’ property. The plaintiffs further allege that as a result of the false complaint, Janice Abramowitz was issued a citation and forced to appear in court as an accused criminal. Furthermore, the plaintiffs assert that Janice Abramowitz was CT Page 15416 subsequently forced to pay legal fees, appear in court on numerous occasions as an accused criminal, endure public humiliation and suffered extreme emotional distress. The plaintiffs also allege that the charge against Janice Abramowitz was dropped and that the defendants’ actions were part of a continuing pattern of intimidation and harassment against Roy Abramowitz, who is Jewish-American. Moreover, the plaintiffs allege that the actions of Tatjana Pogacnik in particular were intentional and were inspired by malice with the express intent to initiate prosecution.
The defendants filed motion #101 to strike counts one and two of the complaint on the grounds that the plaintiffs have failed to sufficiently allege facts to support their claims of malicious prosecution. The motion appeared on the law or motion short calendar of August 8, 2005 (col. 4; pos. 32).
“The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, the trial court construes the facts in the complaint in the manner most favorable to sustaining its legal sufficiency. Id. “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court] assume[s] the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court] read[s] the allegations broadly, rather than narrowly.” (Citation omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003). Furthermore, “[i]n ruling on a motion to strike, the court is limited to the facts alleged in the complaint.” (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The defendants move to strike counts one and two on the grounds that the plaintiffs have not alleged all the requisite elements of malicious prosecution. Specifically, the defendants argue that the plaintiffs have failed to allege that the defendants acted without probable cause, and have failed to allege that the criminal proceedings against Janice Abramowitz terminated in her favor.
“To establish [a] cause of action [in malicious prosecution], CT Page 15417 it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff’s favor.” (Internal quotation marks omitted.) Verspyck v. Franco, 274 Conn. 105, 112 n. 7, 874 A.2d 249 (2005). “An action for malicious prosecution against a private person requires a plaintiff to [allege] that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice.” (Internal quotation marks omitted.) Abramowitz v. Burke, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0182923 (September 26, 2001).
The plaintiffs argue that the motion to strike should be denied because they have sufficiently pleaded in counts one and two that the defendants acted without probable cause. Specifically, the plaintiffs argue that they clearly allege in count one that Tatiana Pogacnik acted without probable cause in that her statements to the police were intentional and inspired by malice, and were intended to initiate prosecution of the plaintiff, Roy Abramowitz, who is Jewish-American. The plaintiffs also argue that they clearly allege in count two that Tatjana Pogacnik acted without probable cause in that her acts were intentional and were inspired by malice with the express intent to initiate prosecution.
The plaintiffs have not sufficiently alleged facts to establish that Tatiana Pogacnik acted without probable cause. Although they have alleged that her actions were intentional and inspired by malice, lack of probable cause cannot be inferred by proof of malice. “Probable cause is the knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action . . . Malice may be inferred from lack of probable cause . . . The want of probable cause, however, cannot be inferred from the fact that malice was proven.” (Citations omitted.) Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978). The plaintiffs have not alleged that Tatjana Pogacnik lacked sufficient knowledge of facts when she complained to the New Canaan police and allegedly instigated the criminal proceedings against the defendants. In this regard, their complaint is deficient. “[E]ven if a person files or maintains [an action] with express ill will towards his adversary, the proven existence of malice does not establish a CT Page 15418 lack of probable cause, for probable cause itself depends uniquely upon the sufficiency of the actor’s factual basis for concluding that he has a meritorious [action.] . . . Whether or not a person is correct in his belief that his adversary has engaged in actionable conduct is not the ultimate issue in deciding whether or not the actor had probable cause . . . What matters, instead, is the kind and quality of information on which the actor personally relied when he subjected his adversary to the [action] . . . [I]f such information was sufficient to justify a reasonably prudent person in the belief that his adversary had committed a legal wrong, the actor cannot be liable for [malicious prosecution] even if he acts with express malice.” (Citations omitted.) Spear v. Summit Medical Center, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 525939 (April 29, 1994).
The defendants also argue that the motion to strike should be granted because the plaintiffs have failed to allege that the charges against Janice Abramowitz terminated in her favor. The plaintiffs assert that count two pleads sufficient facts to establish that the criminal prosecution of Janice Abramowitz terminated in her favor in that the charge was “dropped.”
In viewing the complaint in the light most favorable to the plaintiffs, the plaintiffs have sufficiently alleged that the criminal proceedings terminated in Janice Abramowitz’s favor. “An abandonment of a criminal proceeding, so far as the plaintiff’s right to prevail is concerned, is the equivalent of its successful termination.” Colli v. Kamins, 39 Conn.Sup. 75, 77, 468 A.2d 295 (1983). Also, “[i]t has been frequently held that there is a sufficient termination to meet the requirements . . . for malicious prosecution where the prosecution is abandoned either by the prosecuting attorney or the complaining witness.” (Internal quotation marks omitted.) See v. Gosselin, 133 Conn. 158, 160, 48 A.2d 560 (1946). Moreover, the elements of malicious prosecution were sufficiently alleged where the state’s attorney’s office dropped criminal fraud charges against the plaintiff. Picerno v. Alexeis, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 94 0535383 (February 17, 1998). Thus, the plaintiffs have sufficiently alleged that the criminal proceedings against Janice Abramowitz terminated in her favor by alleging that such charges were “dropped.”
The motion to strike counts one and two of the plaintiffs’ CT Page 15419 complaint is granted because they have not sufficiently alleged a claim of malicious prosecution. Although the plaintiffs have sufficiently alleged that the charges against Janice Abramowitz terminated in her favor, they have failed to sufficiently allege that the defendants acted without probable cause.
So Ordered.
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