Licata v. Kelley

Appellate Division of the Supreme Court of New York

Licata v. Kelley

217 A.D.2d 973, 630 N.Y.S.2d 603, 1995 N.Y. App. Div. LEXIS 8407

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 14, 1995

DocketAppeal No. 1

StatusPublished

Cited by1 cases

This text of 217 A.D.2d 973 (Licata v. Kelley) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Licata v. Kelley, 217 A.D.2d 973, 630 N.Y.S.2d 603, 1995 N.Y. App. Div. LEXIS 8407 (N.Y. Ct. App. 1995).

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Opinion

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly dismissed the first, third, fourth and fifth causes of action asserted in the complaint. When determining the sufficiency of a [974]*974complaint, " 'the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail’ ” (Cowper Co. v Potomac Iron Works, 159 AD2d 952, 953, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275). The first, third, fourth and fifth causes of action seek to recover sums of money as damages resulting from defendant’s alleged acts of adultery with plaintiffs decedent. Causes of action to recover sums of money as damages for such acts have been abolished in this State (see, Civil Rights Law § 80-a; Coopersmith v Gold, 172 AD2d 982, 984).

The court erred, however, in failing to dismiss the second cause of action because it "is limited to seeking pecuniary loss based upon alleged intentional torts”. The second cause of action alleges that, "[a]s a result of the defendant Perry J. Kelley’s continuing breach of duty, Louis Licata has sustained damages in the amount of Five Million ($5,000,000.00) Dollars.” The only breach of duty identified in the complaint is the alleged breach of duty not to commit adultery with plaintiffs wife. Thus, the only tort for which plaintiff sought pecuniary damages was abolished by Civil Rights Law § 80-a (see, Coopersmith v Gold, supra). We modify the order on appeal, therefore, by dismissing the complaint in its entirety.

We have reviewed the remaining contentions raised on appeal and conclude that they are without merit. (Appeals from Order of Supreme Court, Niagara County, Mintz, J.—Dismiss Complaint.) Present—Lawton, J. P., Fallon, Wesley, Callahan and Doerr, JJ.

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Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly dismissed the first, third, fourth and fifth causes of action asserted in the complaint. When determining the sufficiency of a [974]*974complaint, " 'the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail’ ” (Cowper Co. v Potomac Iron Works, 159 AD2d 952, 953, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275). The first, third, fourth and fifth causes of action seek to recover sums of money as damages resulting from defendant’s alleged acts of adultery with plaintiffs decedent. Causes of action to recover sums of money as damages for such acts have been abolished in this State (see, Civil Rights Law § 80-a; Coopersmith v Gold, 172 AD2d 982, 984).

The court erred, however, in failing to dismiss the second cause of action because it "is limited to seeking pecuniary loss based upon alleged intentional torts”. The second cause of action alleges that, "[a]s a result of the defendant Perry J. Kelley’s continuing breach of duty, Louis Licata has sustained damages in the amount of Five Million ($5,000,000.00) Dollars.” The only breach of duty identified in the complaint is the alleged breach of duty not to commit adultery with plaintiffs wife. Thus, the only tort for which plaintiff sought pecuniary damages was abolished by Civil Rights Law § 80-a (see, Coopersmith v Gold, supra). We modify the order on appeal, therefore, by dismissing the complaint in its entirety.

We have reviewed the remaining contentions raised on appeal and conclude that they are without merit. (Appeals from Order of Supreme Court, Niagara County, Mintz, J.—Dismiss Complaint.) Present—Lawton, J. P., Fallon, Wesley, Callahan and Doerr, JJ.

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Bluebook (online)

217 A.D.2d 973, 630 N.Y.S.2d 603, 1995 N.Y. App. Div. LEXIS 8407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/licata-v-kelley-nyappdiv-1995.

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