In a June 16, 2011 decision by Justice Bransten, the court granted the defendants’ motion to dismiss the complaint, the fourth action between the parties, and denied the plaintiffs leave to amend. The complaint was filed in response to litigation defendant Raynor and his affiliated companies commenced in January 2010 which alleged that they were wrongfully denied the opportunity to participate in a stock option plan. In this action, billionaire investor Carl Ichan and his affiliated companies alleged that the timing of the January 2010 lawsuit lowered the demand for and negatively impacted the bonds he was offering (the subject of the January 2010 litigation), and asserted causes of action for (1) tortious interference with contract; (2) libel per se and injurious falsehood; (3) abuse of process and (4) prima facie tort. The court dismissed the complaint, finding that the claims were precluded by various immunity privileges. The tortious interference claim was barred by the Noerr-Pennington doctrine, which holds that a party may not be subjected to liability for petitioning the government or a government agency, such as commencing litigation, and the court found that the “sham” exception to the doctrine did not apply because the January 2010 litigation was not objectively baseless. The court dismissed the libel per se claim, recognizing that New York law grants an absolute privilege to any written or spoken statement made in the course of judicial or legal proceedings if the statement is pertinent to the litigation, which can only be overcome by showing that the alleged defamatory statement is irrelevant to the litigation and “outrageously out of context, which the plaintiffs failed to do. The court found that the plaintiffs failed to state a claim for abuse of process because they alleged nothing beyond the filing of the complaint which in and of itself was insufficient to state the claim for abuse of process. Finally, the determined that the plaintiffs were precluded from bringing a retaliatory lawsuit alleging prima facie tort based on the filing of a prior civil action.
Ichan v Raynor, Sup Ct NY County, June 16, 2011, Bransten, J, Index No. 150040/10