| Morrison v Woolley |
| 2007 NY Slip Op 08161 [45 AD3d 953] |
| November 1, 2007 |
| Appellate Division, Third Department |
| Allan Morrison, Individually and Doing Business as AllanMorrison Custom Built Homes, Respondent, v Paul Woolley et al.,Appellants. |
—[*1] FitzGerald, Morris, Baker & Firth, P.C., Glens Falls (John D. Aspland Jr., of counsel), forrespondent.
Mercure, J.P. Appeal from an order of the Supreme Court (Hall, Jr., J.), entered June 12,2006 in Washington County, which partially granted plaintiff's motion for a preliminaryinjunction.
In December 2003, defendants hired plaintiff, their neighbor, to build portions of their newhome in the Town of Easton, Washington County. Defendants were unhappy with the quality ofthe work and requested that plaintiff perform repairs, but he refused. After learning that plaintiff'shome was for sale in September 2005, defendants placed a sign on their property that stated,"MORRISON BUILT OUR HOUSE CONTACT US BEFORE HE BUILDS YOURS!!" Thesign was illuminated so that it was visible at all times and, in addition to its text, was sometimesaffixed with "frowning 'smiley' faces." Defendants also operated a Web site displaying images ofplaintiff's purported workmanship, and plaintiff claims that these images, as well as defendants'claims about his character, are misleading.
Alleging that he has had great difficulty selling his home due to defendants' actions, plaintiffcommenced this action seeking punitive damages and injunctive relief. Supreme Court partiallygranted plaintiff's subsequent motion for a preliminary injunction, prohibiting defendants from"displaying, maintaining or erecting any signs regarding [plaintiff]" at their [*2]home "during the pendency of this matter." Defendants appeal andwe now modify by denying the motion in its entirety.
It is well settled that a "party seeking a preliminary injunction must demonstrate a probabilityof success on the merits, danger of irreparable injury in the absence of an injunction and abalance of the equities in [his or her] favor" (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840[2005]; see Doe v Axelrod, 73 NY2d 748, 750 [1988]). Here, Supreme Court granted thepreliminary injunction in connection with plaintiff's prima facie tort claim. To succeed on themerits of that claim, plaintiff must show "(1) the intentional infliction of harm, (2) which resultsin special damages, (3) without any excuse or justification, (4) by an act or series of acts whichwould otherwise be lawful" (Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985][citation omitted]; see Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314,332 [1983]). Moreover, "there is no recovery in prima facie tort unless malevolence is the solemotive for defendant's otherwise lawful act or, in [other words], unless defendant acts from'disinterested malevolence' " (Burns Jackson Miller Summit & Spitzer v Lindner, 59NY2d at 333 [citation omitted]; seeLerwick v Kelsey, 24 AD3d 931, 931-932 [2005], lv denied 6 NY3d 711[2006]). Particularly relevant here, "[w]here relief may be afforded under traditional tortconcepts, prima facie tort may not be invoked as a basis to sustain a pleading which otherwisefails to state a cause of action in conventional tort" (Freihofer v Hearst Corp., 65 NY2d at143). That is, prima facie tort is not " 'a "catch-all" alternative for every cause of action whichcannot stand on its legs' " (Curiano v Suozzi, 63 NY2d 113, 118 [1984], quotingBelsky v Lowenthal, 62 AD2d 319, 323 [1978], affd 47 NY2d 820 [1979]).
We agree with defendants that plaintiff has not shown a likelihood of success on the meritson his prima facie tort claim. In determining whether to grant the preliminary injunction,Supreme Court concluded that plaintiff was not likely to succeed on his libel claims, which arebased on the same underlying facts, because defendants' statements merely constitutedexpressions of opinion, and not assertions of fact (see Abrams v Jiskra, 185 Misc 2d 207,208 [2000]). Inasmuch as an "apparent attempt to characterize an alleged libel as a cause ofaction for prima facie tort [will] fail" (Butler v Delaware Otsego Corp., 203 AD2d 783,784 [1994]), plaintiff's prima facie tort claim is also likely to fail (see Belsky vLowenthal, 62 AD2d at 322-323; see also Curiano v Suozzi, 63 NY2d at 118-119).In any event, plaintiff has not alleged that defendants' sole motivation was disinterestedmalice, as required to obtain recovery in prima facie tort (see Burns Jackson Miller Summit &Spitzer v Lindner, 59 NY2d at 333; Bassim v Hassett, 184 AD2d 908, 910 [1992];Roberts v Pollack, 92 AD2d 440, 447 [1983]). In short, because plaintiff failed todemonstrate a likelihood of success on the merits, the preliminary injunction should not havebeen issued.
Defendants' remaining arguments are either rendered academic by our decision or, uponconsideration, have been found to be lacking in merit.
Crew III, Peters, Spain and Rose, JJ., concur. Ordered that the order is modified, on the law,with costs to defendants, by reversing so much thereof as partially granted plaintiff's motion for apreliminary injunction; motion denied in its entirety; and, as so modified, affirmed.