Stanton v. Carrara

28 A.D.3d 642, 813 N.Y.S.2d 515

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 18, 2006
• Status: Published

Opinion

In an action to recover damages for intentional infliction of emotional distress, prima facie tort, and injurious falsehood, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Costello, J.), dated October 28, 2004, which granted the motion of the defendants Kevin Carrara and Gina Carrara pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them.

Ordered that the order is affirmed, without costs or disbursements.

Accepting the allegations of the complaint in the original action as true, and affording the plaintiffs the benefit of every favorable inference, the alleged conduct did not so transcend “the bounds of decency as to be regarded as atrocious and intolerable in a civilized society” (Freihofer v Hearst Corp., 65 NY2d 135, 143 [1985]; see Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983]; Rohrlich v Consolidated Bus Tr., Inc., 15 AD3d 561, 562 [2005]; Poliah v Westchester County Country Club, Inc., 14 AD3d 601 [2005]). Further the plaintiffs failed to allege special damages with the required specificity to state a cause of action sounding in injurious falsehood or prima facie tort (see Freihofer v Hearst Corp., supra at 143; Waste Distillation Tech, v Blasland & Bouck Engrs., 136 AD2d 633, 634 [1988]; Matherson v Marchello, 100 AD2d 233, 235 [1984]).

Subsequent to the order appealed from, the plaintiffs commenced a second action. The complaint in that action was improperly included in the record on appeal, and point two of the plaintiffs’ brief is based upon that complaint. Since this material is dehors the record it has not been considered. Prudenti, P.J., Florio, Goldstein and Lunn, JJ., concur.