| Lisi v Kanca |
| 2013 NY Slip Op 02225 [105 AD3d 714] |
| April 3, 2013 |
| Appellate Division, Second Department |
| Brandon G. Lisi, Appellant, v Diane K. Kanca etal., Respondents. |
—[*1] McDonough Law, LLP, named herein as The McDonough Law Firm, LLP, NewRochelle, N.Y. (Edward G. Warren, pro se of counsel), respondent pro se and forrespondents Diane K. Kanca, Edward G. Warren, and Georgia Tsismenakis.
In an action to recover damages for prima facie tort, the plaintiff appeals from anorder of the Supreme Court, Kings County (Ruchelsman, J.), dated May 24, 2011, whichgranted that branch of the defendants' motion which was to dismiss the complaintpursuant to CPLR 3211 (a) (7).
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted that branch of the defendants' motion whichwas to dismiss the complaint pursuant to CPLR 3211 (a) (7). Affording the complaint aliberal construction, accepting all facts as alleged in the complaint to be true, andaccording the plaintiff the benefit of every favorable inference as required on a motion todismiss pursuant to CPLR 3211 (a) (7), the complaint fails to state a cause of actionalleging prima facie tort for statements made by the defendants during prior litigationinvolving the parties. The complaint fails to adequately plead that the statements weremotivated solely by "disinterested malevolence" (Lancaster v Town of E. Hampton, 54 AD3d 906, 908[2008]). Contrary to the plaintiff's contention, the allegations in the complaint reveal thatthe statements made by the defendants were material and pertinent to their motion for anaward of sanctions against him, which was made in the prior litigation (see generally Matter of Fagan,58 AD3d 260 [2008]; seealso Wilson v Erra, 94 AD3d 756, 756-757 [2012]; Kilkenny v Law Off. of Cushner &Garvey, LLP, 76 AD3d 512, 513 [2010]). Accordingly, the complaint fails tostate a cause of action alleging prima facie tort, and that branch of the defendants' motionwhich was to dismiss the complaint pursuant to CPLR 3211 (a) (7) was properly granted.
In light of the foregoing, we need not reach the plaintiff's remaining contention. Eng,P.J., Dickerson, Hall and Lott, JJ., concur.