Vevaina v. Paccione

Appellate Division of the Supreme Court of New York

Vevaina v. Paccione

125 A.D.2d 392, 509 N.Y.S.2d 113, 1986 N.Y. App. Div. LEXIS 62669

Appellate Division of the Supreme Court of the State of New York·Decided December 8, 1986·Published·Cited by 8 cases

Opinion

— In an action to recover damages for the intentional infliction of emotional distress, prima facie tort, malicious prosecution, and defamation, the plaintiff appeals from an order of the Supreme Court, Nassau County (Robbins, J.), dated July 12, 1985, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff failed to set forth sufficient factual allegations [393]*393that the defendant’s conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, which would warrant allowing a jury to consider the cause of action to recover damages for the intentional infliction of emotional distress (see, Murphy v American Home Prods. Corp., 58 NY2d 293, 303-304). With respect to the cause of action to recover damages for prima facie tort, the plaintiff failed to set forth allegations of special damages with sufficient specificity to defeat a summary judgment motion, failed to demonstrate that malice was the defendant’s only motive in commencing a prior lawsuit, and improperly sought to assert a cause of action sounding in prima facie tort in order to avoid the more stringent requirement for traditional torts (see, Curiano v Suozzi, 63 NY2d 113). The plaintiff did not meet the requirements for a cause of action sounding in malicious prosecution because he failed to set forth sufficient allegations that the prior action was terminated in his favor or that he suffered interference from a provisional remedy (see, Ellman v McCarty, 70 AD2d 150). Finally, the statements alleged to be defamatory were made in a complaint in a prior judicial proceeding and were pertinent to that litigation. Consequently, those statements were privileged (see, Mack v Olsen, 90 AD2d 482). Accordingly, Special Term properly granted the defendant’s motion for summary judgment and dismissed the action. Mollen, P. J., Bracken, Brown and Sullivan, JJ., concur.

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— In an action to recover damages for the intentional infliction of emotional distress, prima facie tort, malicious prosecution, and defamation, the plaintiff appeals from an order of the Supreme Court, Nassau County (Robbins, J.), dated July 12, 1985, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff failed to set forth sufficient factual allegations [393]*393that the defendant’s conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, which would warrant allowing a jury to consider the cause of action to recover damages for the intentional infliction of emotional distress (see, Murphy v American Home Prods. Corp., 58 NY2d 293, 303-304). With respect to the cause of action to recover damages for prima facie tort, the plaintiff failed to set forth allegations of special damages with sufficient specificity to defeat a summary judgment motion, failed to demonstrate that malice was the defendant’s only motive in commencing a prior lawsuit, and improperly sought to assert a cause of action sounding in prima facie tort in order to avoid the more stringent requirement for traditional torts (see, Curiano v Suozzi, 63 NY2d 113). The plaintiff did not meet the requirements for a cause of action sounding in malicious prosecution because he failed to set forth sufficient allegations that the prior action was terminated in his favor or that he suffered interference from a provisional remedy (see, Ellman v McCarty, 70 AD2d 150). Finally, the statements alleged to be defamatory were made in a complaint in a prior judicial proceeding and were pertinent to that litigation. Consequently, those statements were privileged (see, Mack v Olsen, 90 AD2d 482). Accordingly, Special Term properly granted the defendant’s motion for summary judgment and dismissed the action. Mollen, P. J., Bracken, Brown and Sullivan, JJ., concur.

Vevaina v. Paccione, 125 A.D.2d 392, 509 N.Y.S.2d 113, 1986 N.Y. App. Div. LEXIS 62669 (N.Y. Ct. App. 1986).

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