| Benyo v Sikorjak |
| 2008 NY Slip Op 04044 [50 AD3d 1074] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Nicholas Benyo et al., Respondents, v David Sikorjak etal., Appellants. |
—[*1] Dauti Law Firm, P.C., New York, N.Y. (Ylber A. Dauti of counsel), forrespondents.
In an action, inter alia, to recover damages for intentional infliction of emotional distress, thedefendants appeal (1) from an order of the Supreme Court, Westchester County (Donovan, J.),entered February 16, 2007, which granted the plaintiffs' motion for leave to serve an amendedcomplaint, and (2), as limited by their brief, from so much of an order of the same court (Nicolai,J.), entered July 9, 2007, as amended by order of the same court entered August 8, 2007, asdenied those branches of their motion pursuant to CPLR 3211 (a) to dismiss the first, second, andfourth causes of action asserted in the amended complaint.
Ordered that the order entered February 16, 2007 is affirmed, without costs or disbursements;and it is further,
Ordered that the order entered July 9, 2007, as amended, is modified, on the law, by deletingthe provisions thereof denying those branches of the defendants' motion which were to dismissthe first and second causes of action and substituting therefor provisions granting those branchesof the motion; as so modified, the order entered July 9, 2007, as amended, is affirmed insofar asappealed from, without costs or disbursements.
The plaintiff Nicholas Benyo is the principal of the plaintiff Benyo Worldwide Travel(hereinafter Benyo Travel), a corporation which has its offices located in a building in Yonkers.The building was purchased in 1978 by B & H Management, Inc., a corporation partly owned byNicholas Benyo. In 1992 Benyo Travel entered into a 99-year lease with B & H Management.Also in 1992 Benyo Travel hired the defendant David Sikorjak as an employee of Benyo Travel.Sikorjak later became a stockholder and officer of Benyo Travel. In 1999 the building waspurchased by the defendants Sikorjak and Mikulas Benyo, who then formed the corporatedefendant Tatra Apartments, Inc. (hereinafter Tatra) to run the building.
In April 2002 Sikorjak formed his own travel agency, the defendant Danube InternationalTravel, Inc., and in May 2002 he resigned from the employ of Benyo Travel. In October 2002Tatra brought eviction proceedings against the plaintiffs, and thereafter a declaratory judgmentaction seeking to invalidate the 99-year lease. These matters ultimately terminated in theplaintiffs' favor by February 2005. The plaintiffs contend that, thereafter, the defendants deprivedthe plaintiffs of the basic services to which they were entitled to under their lease, and engaged inpractices aimed at driving the plaintiffs out of business. The plaintiffs commenced this actionasserting causes of action alleging intentional infliction of emotional distress, abuse of process,and fraud.
The plaintiffs moved for leave to amend their complaint, inter alia, to merge two causes ofaction and "further specify the remaining causes of action." In an order entered February 16,2007, this motion was granted by the court. The defendants moved to dismiss the complaint onthe grounds that it failed to state a cause of action, was barred by res judicata, and wastime-barred. In an order entered July 9, 2007, as amended, the court, inter alia, granted thatbranch of the defendants' motion which was to dismiss the cause of action alleging breach offiduciary duty, and otherwise denied the motion. The defendants appeal from both orders.
The Supreme Court properly granted the plaintiffs' motion for leave to amend theircomplaint. Leave to amend generally will be granted as long as the opponent is not surprised orprejudiced by the proposed amendment (see G.K. Alan Assoc., Inc. v Lazzari, 44 AD3d 95, 99 [2007]; Trataros Constr., Inc. v New York CityHous. Auth., 34 AD3d 451, 452-453 [2006]). Furthermore, as recently stated by thisCourt in the case of Lucido v Mancuso,49 AD3d 220 [2008]: "[A] plaintiff seeking leave to amend the complaint is notrequired to establish the merit of the proposed amendment in the first instance [and] the legalsufficiency or merits of a pleading will not be examined unless the insufficiency or lack of meritis clear and free from doubt (Sample vLevada, 8 AD3d 465, 467-468 [2004]; see Sleepy's, Inc. v Orzechowski, 7 AD3d 511 [2004]; ZacmaCleaners Corp. v Gimbel, 149 AD2d 585, 586 [1989])."
In the case at bar, the proposed amended complaint was not palpably insufficient and, in fact,did not markedly differ from the original complaint. Under these circumstances, there is noreason to disturb the Supreme Court's determination granting the plaintiffs leave to serve anamended complaint (see Voyticky vDuffy, 19 AD3d 685 [2005]; Sewkarran v DeBellis, 11 AD3d 445 [2004]; Liberty Mut. Ins.Co. v Perfect Knowledge, 299 AD2d 524 [2002]).
The Supreme Court also properly denied that branch of the defendants' motion which soughtdismissal of the fourth cause of action asserted in the complaint. Construing this claim in thelight most favorable to the plaintiff and accepting the factual allegations of the complaint as true(see [*2]Davis v CCF Capital Corp., 277 AD2d 342[2000]; Gruen v County of Suffolk, 187 AD2d 560 [1992]), we agree with the SupremeCourt that the fourth cause of action adequately states a claim alleging fraud, which arosesometime after Sikorjak left Benyo Travel's employ in 2002. Furthermore, this cause of action isnot time-barred since it was asserted in 2006 and is governed by a six-year statute of limitations(see CPLR 213 [7]; see also Channel Master Corp. v Aluminium Ltd. Sales, 4NY2d 403, 408 [1958]; Toscano v Toscano, 285 AD2d 590 [2001]; Katz v BachRealty, 192 AD2d 307 [1993]).
However, the first and second causes of action should have been dismissed. The first causeof action seeks damages for intentional infliction of emotional distress. In order to state a causeof action alleging the intentional infliction of emotional distress, the conduct alleged must be "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds ofdecency, and to be regarded as atrocious, and utterly intolerable in a civilized community' "(Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983], quotingRestatement [Second] of Torts § 46, comment d; see Howell v New York PostCo., 81 NY2d 115, 122 [1993]; Freihofer v Hearst Corp., 65 NY2d 135, 143 [1985];Hering v Lighthouse 2001, LLC, 21AD3d 449, 451 [2005]).
In the case at bar, even accepting the allegations of the complaint as true, the plaintiffs onlyshowed that the defendants attempted to terminate the long-term lease either through legalproceedings or through a failure to provide some building services. While these actions may havebeen unfounded or even improper, they cannot be considered so extreme in degree as to go"beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable ina civilized community" (Murphy v American Home Prods. Corp., 58 NY2d at 303[internal quotation marks omitted]; cf. Green v Fischbein, Olivieri, Rozenholc & Badillo,135 AD2d 415 [1987]). Accordingly, the court should have granted that branch of thedefendants' motion which was to dismiss the cause of action alleging intentional infliction ofemotional distress pursuant to CPLR 3211 (a) (7).
The second cause of action, which seeks damages for abuse of process, stems from theallegedly baseless legal proceedings which the defendants brought in an attempt to evict theplaintiffs and/or terminate the 99-year lease. Abuse of process is an intentional tort and, thus, isgoverned by a one-year statute of limitations (see CPLR 215; Peerless Abstract Corp. v Seltzer, 35AD3d 423 [2006]; Dobies v Brefka, 263 AD2d 721 [1999]; Beninati v Nicotra,239 AD2d 242 [1997]; Bittner v Cummings, 188 AD2d 504 [1992]). Since thecomplaint indicates that the last of the legal proceedings involving eviction and/or termination ofthe lease concluded in February 2005, and it is undisputed that the complaint was filed in May2006, the cause of action alleging abuse of process is time-barred. Therefore, this cause of actionalso should have been dismissed.
The defendant's remaining contentions either are without merit or need not be reached inlight of our determination. Mastro, J.P., Santucci, Eng and Belen, JJ., concur.