Chinese Consolidated Benevolent Ass'n v. Maria Chan Tsang

254 A.D.2d 222, 679 N.Y.S.2d 54, 1998 N.Y. App. Div. LEXIS 11411

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 29, 1998
• Status: Published

Opinion

Order, Supreme Court, New York County (Richard Braun, J.), entered November 25, 1997, which granted plaintiffs’ motion pursuant to CPLR 3211 (a) (1) and (7) and (b) to dismiss defendant’s counterclaims for intentional infliction of emotional distress and defamation and defendant’s fifth affirmative defense of lack of personal jurisdiction, unanimously affirmed, with costs.

The first counterclaim asserted by defendant, the former principal of plaintiff school, alleging that agents of plaintiffs accused her of taking money belonging to the school, demanded either return of the money or an explanation, and, failing that, threatened to go to the police to seek to have defendant arrested, does not state a cause of action for intentional infliction of emotional distress in the absence of any allegations that the accusation was without reasonable basis or of conduct that went beyond simply making the alleged statements to defendant (see, Howell v New York Post Co., 81 NY2d 115, 122; compare, e.g., Vasarhelyi v New School for Social Research, 230 AD2d 658, 659-660, 661). The second counterclaim for defamation, alleging plaintiffs’ statement to a newspaper that “financial records indicated that $60,000.00 [of the school’s funds had been] withdrawn by [defendant], and [plaintiffs would] ask [defendant] for an explanation”, was correctly dismissed based on the withdrawal slips apparently signed by defendant, who does not challenge their authenticity, and which establish the truth of the alleged statement. Finally, plaintiffs’ affidavit of service constituted prima facie evidence -that defendant had been properly served with the summons and complaint and neither defendant’s conclusory denial of service nor her incompetent assertion in the verified answer that plaintiffs had not complied with the mailing requirement of CPLR 308 (2), a matter not within her personal knowledge, raised any issue of fact requiring a traverse hearing. Concur— Lerner, P. J., Milonas, Ellerin, Rubin and Williams, JJ.