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FRUIT AND VEGETABLE ASSOCIATION (FVA)…cont

With regard to plaintiff’s claim for abuse of process, FVA has demonstrated prima facie entitlement to summary judgment. In order to prevail on a cause of action a plaintiff must demonstrate that defendant: (1) caused the issuance of regularly issued process either criminal or civil; (2) with the intent to do harm without excuse or justification; (3) that the process was perverted to obtain a collateral advantage; and (4) that the process unlawfully interfered with plaintiff’s person or property. As discussed above, to the extent that plaintiff must prove all elements, a defendant obtains summary judgment if he negates the existence of any one of the elements.

FVA has demonstrated prima facie entitlement to summary judgment insofar as it has demonstrated that the process herein, namely, the reparation action, was not perverted in any way so as to obtain a collateral advantage. The witness establishes that the reparation action was commenced and prosecuted for a legitimate purpose, namely to recover money which GROWERS felt it was entitled to recover insofar as plaintiff had fraudulently obtained the same. To the extent that the purpose of the reparation action was to recover money and the same was GROWERS’s goal, it cannot be said that the process was perverted to obtain a collateral advantage. Based on the foregoing, FVA has demonstrated prima facie entitlement to summary judgment with regard to the abuse of process claim.

FVA has demonstrated prima facie entitlement to summary judgment with regard to plaintiff’s claim asserting fraud. It is worth noting that injury plaintiff never opposes this portion of FVA’s motion and as such, summary judgment is granted on default. Nevertheless it is well settled that a cause of action for fraud or misrepresentation requires proof that defendant misrepresented an existing fact, falsity, scienter, justifiable reliance by the plaintiff and damages. The Court finds that FVA’s evidence demonstrates an absence of misrepresentation, falsity or scienter. As such, FVA has established prima facie entitlement to summary judgment with regard to the cause of action for fraud.

Plaintiff’s opposition fails to raise a triable issue of fact with regard to any of the causes of action asserted. In order to thwart summary judgment plaintiff must at the very least raise material issues of fact with regard to all elements of the causes of action negated by FVA. With regard to the claim for malicious prosecution, FVA established that the reparation proceeding at issue cannot serve as a basis for the instant action, that FVA had probable cause to commence the same, and that it commenced the same without malice. Plaintiff has failed to raise triable issues of fact with regard to these elements.

Plaintiff’s opposition fails to raise an issue of fact sufficient to preclude summary judgment with regard to the claim for abuse for process. While plaintiff argues that the reparation action was commenced by FVA in order to attract more members rather than for the legitimate purpose of recovering money owed to GROWERS as a result of fraudulent price reductions, plaintiff offers no evidence to support the same. As such the record is bereft of any evidence controverting FVA’s assertion that the reparation action was commenced for a legitimate and lawful purpose and as such the Court finds no perversion of process in order to obtain a collateral advantage. As mentioned above, plaintiff offers no opposition to FVA’s motion regarding the cause of action for fraud and as such nothing controvert’s FVA’s evidence on that issue. Based on the foregoing, plaintiff fails to raise any triable issues of fact sufficient to preclude summary judgment. FVA’s motion seeking summary judgment over plaintiff is hereby granted.

However, FVA’s motion seeking summary judgment on its counterclaim is hereby denied for the same reasons stated above.

Claims for personal injury does not only include damages arising from physical harm or accident, it may involve damages based from other sources like in the case at bar, the malicious prosecution of a case.

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