| Tarek Youssef Hassan Saleh v 5th Ave. Kings Fruit & VegetablesCorp. |
| 2012 NY Slip Op 01232 [92 AD3d 749] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Tarek Youssef Hassan Saleh, Appellant, v 5th Ave. KingsFruit & Vegetables Corp. et al., Respondents, et al., Defendant. |
—[*1] Law Office of Steven G. Fauth, LLC, New York, N.Y. (Scott S. Levinson of counsel), forrespondents.
In an action, inter alia, to recover damages for defamation, the plaintiff appeals from an orderof the Supreme Court, Kings County (Vaughan, J.), dated June 30, 2010, which denied hismotion for leave to serve a second amended complaint and granted the cross motion of thedefendants 5th Ave. Kings Fruit & Vegetables Corp., Adel Kassim, and Youssof Alshoaibey forsummary judgment dismissing the amended complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
In 2008, after the defendant Mahmoud Abdul Azeez allegedly defamed the plaintiff in frontof a crowd outside of the store operated by the defendant 5th Ave. Kings Fruit & VegetablesCorp. (hereinafter the store), the plaintiff sued Azeez, the store, store owner Adel Kassim, andstore manager Youssof Alshoaibey. The plaintiff alleged defamation, intentional infliction ofemotional distress, prima facie tort, and tortious interference with contractual relations andprospective business relationships with respect to all defendants. Azeez has not appeared in thisaction.
The store, Kassim, and Alshoaibey (hereinafter collectively the defendants) moved forsummary judgment dismissing the amended complaint insofar as asserted against them. Aftertheir motion was denied due solely to a procedural defect, the plaintiff moved for leave to serve asecond amended complaint to include a cause of action based on the doctrine of respondeatsuperior, as well as causes of action alleging negligent hiring, supervision, and training. Thedefendants then cross-moved for summary judgment, raising the same arguments presented intheir initial motion. The Supreme Court denied the plaintiff's motion and granted the defendants'cross motion.
"Leave to amend a pleading should be freely granted where . . . the proposedamendment is not palpably insufficient or patently devoid of merit, and will not prejudice orsurprise the opposing party" (Bolanowski v Trustees of Columbia Univ. in City of N.Y., 21 AD3d340, 341 [2005] [citation omitted]). "A determination whether to grant such leave is withinthe Supreme Court's broad discretion, and the exercise of that discretion will not be lightlydisturbed" (Peerless Ins. Co. v MicroFibertek, Inc., 67 AD3d 978, 980 [2009]). Here, the Supreme Court providentlyexercised its [*2]discretion in denying the plaintiff's motion forleave to amend his complaint, since the proposed amendments were patently devoid of merit (see Dubi v Jericho Fire Dist., 22 AD3d631, 632-633 [2005]).
The Supreme Court also properly granted the defendants' cross motion for summaryjudgment dismissing the amended complaint insofar as asserted against them. The recordreflects, and the plaintiff concedes, that the defendants did not utter any defamatory statementsregarding him. Moreover, the defendants presented evidence establishing that they did notinstigate or participate in the verbal altercation between the plaintiff and Azeez. Accordingly, thedefendants established their prima facie entitlement to judgment as a matter of law dismissingthose causes of action alleging defamation (see Salvatore v Kumar, 45 AD3d 560, 563 [2007]) and intentionalinfliction of emotional distress (see Freihofer v Hearst Corp., 65 NY2d 135, 143-144[1985]; Epifani v Johnson, 65 AD3d224, 230-231 [2009]) insofar as asserted against them. The plaintiff failed to raise a triableissue of fact in opposition.
Additionally, the defendants established, prima facie, their entitlement to judgment as amatter of law dismissing the plaintiff's cause of action alleging prima facie tort insofar as assertedagainst them, by demonstrating, inter alia, that the plaintiff did not incur special damages, a"requisite element[ ] of a cause of action for prima facie tort" (Freihofer v Hearst Corp.,65 NY2d at 142; see Epifani v Johnson, 65 AD3d at 233). They also established theirprima facie entitlement to judgment as a matter of law with respect to the plaintiff's cause ofaction alleging tortious interference with contractual relations and prospective businessrelationships (see Smith v MeridianTech., Inc., 86 AD3d 557, 559-560 [2011]; Monex Fin. Servs., Ltd. v Dynamic Currency Conversion, Inc., 76AD3d 515, 515-516 [2010]; NRT Metals v Laribee Wire, 102 AD2d 705, 706[1984]). In opposition, the plaintiff failed to raise a triable issue of fact. Rivera, J.P., Eng, Lottand Sgroi, JJ., concur.