Defendant FRUIT AND VEGETABLE ASSOCIATION (FVA) moves seeking an Order granting it summary judgment over plaintiff in the instant action. FVA avers that summary judgment is warranted for a host of different reasons. With regard to plaintiff’s cause of action for malicious prosecution, FVA avers, inter alia, it had probable cause to initiate the prior proceeding upon which the instant action is premised. With regard to plaintiff’s cause of action for abuse of process, FVA avers, inter alia, that it had no intent to harm plaintiff when it initiated the instant action. With regard to plaintiff’s cause of action for fraud, FVA avers that it did not misrepresent any facts to the plaintiff with an intent to deceive. FVA also seeks summary judgment on its counterclaim against plaintiff for malicious prosecution. FVA avers that summary judgment on its counterclaim is warranted insofar as plaintiff commenced the instant action absent probable cause. For the reasons that follow hereinafter, FVA’s motion is hereby granted in part.
The instant action is for alleged personal injury premised upon malicious prosecution, abuse of process and fraud. The complaint alleges that plaintiff is a buyer, in the business of buying tomatoes from various farmers and shippers which it then sells to consumers and purchasers. Defendant TOMATO GROWERS (GROWERS) is a tomato shipper.
The United States Department of Agriculture (USDA) is mandated by statute to provide produce inspections to both shippers and wholesalers. Said inspections are designed to ensure that the produce meets defined standards. In 1997-1999 plaintiff through a broker contracted to purchase various shipments of tomatoes from GROWERS. When certain shipments were received by the plaintiff they were not of the quality contracted. As a result, GROWERS, knowing that the tomatoes were not of the quality contracted, granted plaintiff a price reduction. In 1999, the United States Government (Government), conducted an investigation called “Operation Forbidden Fruit” (OFF) wherein it undertook to investigate USDA inspectors and shippers at the Hunts Point Market (Market), located in Bronx County, New York. Nine USDA inspectors were indicted for accepting bribes from the buyers and several of the buyer’s employees were indicted for bribing USDA inspectors. One of the employees indicted was S an employee with the injury plaintiff. Eight USDA inspectors pled guilty to the charges and a ninth ultimately pled guilty as well, but not before cooperating with the Government and its investigation.
Plaintiff alleges that on March 27, 2000, FVA filed an informal complaint with the USDA on behalf of GROWERS and against plaintiff. GROWERS, despite knowledge that the adjustments on tomatoes sold to plaintiff were warranted, sought reimbursement for the adjustments. GROWERS sought reimbursement on eight loads of tomatoes despite previously granting plaintiff an adjustment on many other shipments and failed to seek reimbursement on a load of tomatoes which was part of S’s indictment. In April 2001, FVA filed a formal complaint with the USDA on behalf of GROWERS and against plaintiff seeking reimbursement for adjustments granted to plaintiff totaling $38,000 plus interest and costs.
On February 6, 2002, the USDA issued a decision awarding GROWERS the damages it sought. Plaintiff subsequently sought an appeal of the USDA’s decision in the United States District Court, Southern District of New York (SDNY) pursuant to the Perishable Agricultural Commodities Act (PACA). Upon plaintiff’s filing of the appeal, GROWERS discontinued its action with prejudice, withdrew its complaint with the USDA, and executed a stipulation dismissing the action.
Plaintiff’s first cause of action alleges that the stipulation dismissing the action was an adjudication that defendants had no factual or legal basis to file the complaint with the USDA. It is alleged that defendants knew that the allegations in the complaint were false and that they were nonetheless wrongfully and willfully made with the intent to extort and defraud the plaintiff, using OFF and the guilty pleas resulting therefrom as a basis. As a result of defendants’ abuse of process, commencement, and prosecution of the prior actions, accident plaintiff was caused to expend time, energy and $50,000 in defending the action. As a result of defendants’ actions designed to extort and defraud plaintiff, $500,000 in punitive damages is sought. Plaintiff’s second cause of action, albeit in a more brief fashion, reiterates the first cause of action.
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