N47 Assoc. LLC v. Jemsco Realty LLC

2025 NY Slip Op 31605(U)

Opinion

N47 Assoc. LLC v Jemsco Realty LLC 2025 NY Slip Op 31605(U) May 1, 2025 Supreme Court, New York County Docket Number: Index No. 655551/2023 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 655551/2023 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 05/02/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 655551/2023 N47 ASSOCIATES LLC MOTION DATE 10/25/2024 Plaintiff, MOTION SEQ. NO. 002 -v- JEMSCO REALTY LLC, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 were read on this motion to/for REARGUMENT/RECONSIDERATION .

Upon the foregoing documents, plaintiff’s motion is granted in part.

Background

This motion arises out of a long-running dispute between neighboring property owners.

N47 Associates LLC (“Plaintiff”) is attempting to build a new hotel on its Manhattan property.

In the process of getting an access agreement in place, Jemsco Realty LLC (“Defendant”). Who

owns the property immediately adjacent, discovered that there were issues regarding its lot line

windows and window air conditioning units. In the bitter dispute over the narrow strip of land

located between the parties (the “Strip”) that followed, which played out across the New York

court system and the press, Defendant made certain statements to the Wall Street Journal that

Plaintiff alleges knowingly case false doubt on Plaintiff’s title to the Strip.

The present proceeding was brought by Plaintiff, who pled claims for slander of title and

prima facie tort. Defendant brought a pre-answer motion to dismiss. In an order dated August of

2024 (the “August Order”), this Court granted the motion to dismiss. In the August Order, the

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Court stated that the complaint did not allege special damages with particularity, which is

required for both claims.

Standard of Review

CPLR § 2221(d) allows for a party to make a motion to reargue if it is “identified

specifically as such” and requires that it be based “upon matters of fact or law allegedly

overlooked or misapprehended by the court in determining the prior motion but shall not include

any matters of fact not offered on the prior motion.”

Discussion

Plaintiff seeks to reargue the August Order on the grounds that the Court overlooked the

affidavit of Elysa Goldman (the “Goldman Affidavit”) who itemized the exact pecuniary details

of Plaintiff’s alleged damages. Defendant opposes and argues that the motion should be denied

even if the Court finds that the Goldman Affidavit would remedy any defects in the complaint, as

there are other, independent grounds for dismissing the complaint. For the reasons that follow,

the motion to reargue is granted in part, and the order dismissing the complaint is modified to

dismiss only the claim for prima facie tort.

The Goldman Affidavit Satisfies the Pleading Standard

Defendant argues that any consideration of the Goldman Affidavit would be

discretionary, and therefore the Court should decline the reargument motion. CPLR § 3211(c)

does use the discretionary word “may” when stating that a court can consider affidavits to

remedy any potential defects in a complaint. Plaintiff has not cited to any authority holding that

it is mandatory for a court to consider such affidavits, but the Court will do so here in the

interests of full consideration on the merits. The Goldman Affidavit itemizes the losses alleged,

including categories such as “Land Loan Interest Expense” and “Real Estate Taxes.” Special

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damages “must be alleged with sufficient particularity to identify actual losses and be related

causally to the alleged tortious acts.” Lincoln First Bank v. Siegel, 60 A.D.2d 270, 280 [4th Dept.

1977]. Here, the itemized list of damages would suffice, on the standard of a motion to dismiss,

to satisfy the special damages pleading standard as for particularity.

Defendant also argues that the Goldman Affidavit fails to causally relate the damages to

the statements made by Defendant, which is a requirement for slander of title and prima facie

tort. The complaint refers to “a proverbial cloud on Plaintiff’s ownership interest” and

consistently ties the alleged damages to Defendant’s statements to both the Wall Street Journal

article and statements made in court over the course of other litigation on the matter of adverse

possession. The Goldman Affidavit also refers to the Wall Street Journal but seems primarily to

tie the damages alleged to the delay resulting from the various proceedings between the parties.

It states that the damages were a result of “delays in construction attributable to Defendant’s

conduct.” It is unclear whether the allegation is that the delay damages were a result of

Defendant pursuing litigation, or the statements made to the Wall Street Journal. But with every

favorable inference, as is the standard on a motion to dismiss, the Goldman Affidavit and the

complaint adequately pled the special damages requirement.

The Court Is Not Barred from Considering the Other Grounds for Dismissal on This

Motion

Defendant has argued that even if the Goldman Affidavit would satisfy the pleading

requirements, the reargument motion should still be denied as there are independent reasons to

dismiss the complaint. Plaintiff cites to McCay for the proposition that the Court cannot consider

any other reasons for dismissal of the complaint than the special damages pleading requirement,

but that case does not prohibit the Court from denying the reargument motion for other grounds.

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In McCay, the First Department declined a request by the plaintiff to search the record “for the

purpose of granting him summary judgment on his section 241(6) claim, which, although a

subject of his prior motion for summary judgment, was not a subject of his motion for

reargument.” McCay v. J.A. Jones-GMO, LLC, 74 A.D.3d 615, 616 [1st Dept. 2010]. The Court

does not read this case as standing for the proposition that, should we consider the Goldman

Affidavit as remedying any pleading deficiency in the complaint, the Court cannot also deny the

motion for reargument because the complaint would have been dismissed for other reasons.

The Absolute Litigation Privilege and the Particularity Requirement Do Not Bar the

Slander of Title Claim on a Motion to Dismiss

Defendant argues that the slander of title claim is barred by the litigation privilege. Much

of the basis for Plaintiff’s claim does involve the initiation of civil litigation and their actions

therein. There is a “sham action” exception to the absolute litigation privilege. See, e.g., Thomas

v. G2 FMV, LLC, 147 A.D.3d 700, 701 [1st Dept. 2017]. If there is a question as to whether the

exception applies, construing the complaint in the light most favorable to the plaintiff, the “issue

should be decided at trial.” Flomenhaft v. Finkelstein, 127 A.D.3d 634, 638 [1st Dept. 2015].

Furthermore, Plaintiff’s allegations that form the basis of their claim include statements made to

the press. Under a favorable inference reading, these statements do not fall under the absolute

litigation privilege.

Defendant also argues that the complaint does not allege the time, place and manner that

the statements were made to the press, citing to defamation case law. For a claim sounding in

libel or slander, “the particular words complained of shall be set forth in the complaint.” CPLR

§ 3016(a). Plaintiff has submitted the entirety of the Wall Street Journal article and has quoted

relevant excerpts in the complaint. This suffices to satisfy the particularity pleading requirement.

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Statute of Limitations Does Not Bar the Slander of Title Claim

Defendant argues that the motion to reargue should be denied because the slander of title

claim is barred by the statute of limitations. An action for slander of title has a one-year statute of

limitations under CPLR § 215. This action was commenced on November 8, 2023. Defendant

points to the filing of the adverse possession action in 2020 as starting the clock for Plaintiff’s

claim. The clock for a slander of title action begins to run “from the time when pecuniary loss is

incurred.” Rosenbaum v. City of New York, 8 N.Y.3d 1, 12 [2006]. Here, Plaintiff alleges that

they suffered continuing damages, including some as a result of actions in August and November

of 2023. Under the continuing tort doctrine, the one-year statute of limitations in CPLR § 215

does not bar a claim “so long as the final actionable event occurred within one year of the suit.”

Shannon v. MTA Metro-North R.R., 269 A.D.2d 218, 219 [1st Dept. 2000]. Under this doctrine,

Plaintiff’s claim is not tolled by the statute of limitations.

The Prima Facie Tort Claim Fails for Other Reasons

Plaintiff has pled a claim for prima facie tort in the complaint. This claim fails for several

reasons, even with the favorable motion to dismiss standard. First, an allegedly “malicious

institution of a prior civil action” cannot form the basis of a claim for prima facie tort. Curiano v.

Suozzi, 63 N.Y.2d 113, 118 [1984]. Secondly, a required element of this tort is “disinterested

malevolence.” Id., at 117. This element requires that the tortfeasor’s motivation “must be a

malicious one unmixed with any other and exclusively directed to the injury and damage of

another.” Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 333 [1983]. Here,

according to Plaintiff’s own allegations, Defendants actions are at least in part motivated by a

desire to avoid having to close its lot line windows and remove the window-hung air

conditioning units. Therefore, even taking all facts alleged by Plaintiff as true, the complaint fails

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to allege a valid claim for prima facie tort because the claim is based in large part on the

institution of prior civil litigation and is motivated at least in part by the desire to avoid a

negative impact on Defendant’s property. Accordingly, it is hereby

ADJUDGED that the plaintiff’s motion to reargue is granted as to the slander of title

claim and denied as to the prima facie tort claim; and it is further

ORDERED that the decision and order of this Court dated August 28, 2024, is hereby

modified to grant dismissal as to the second cause of action for prima facie tort and deny the

motion to dismiss as to the first cause of action for slander of title; and it is further

ORDERED that the Clerk of the Court shall restore this matter to active status.

5/1/2025 DATE LYLE E. FRANK, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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