| Wiggins & Kopko, LLP v Masson |
| 2014 NY Slip Op 02368 [116 AD3d 1130] |
| April 3, 2014 |
| Appellate Division, Third Department |
| Wiggins & Kopko, LLP, et al., Respondents, v RobinAbrahamson Masson et al., Appellants. |
—[*1] Hiscock & Barclay LLP, Albany (Jason D. Hughes of counsel), for Peter J. Walshand another, appellants. Edward E. Kopko, Lawyer, PC, Ithaca (Edward E. Kopko of counsel), forrespondents.
Lahtinen, J.P. Appeal from an order of the Supreme Court (Mulvey, J.), entered April15, 2013 in Tompkins County, which denied defendants' motions to dismiss the amendedcomplaint.
Defendant attorney Peter J. Walsh represented defendant attorney RobinAbrahamson Masson in her dispute with former law partners over the distribution oflegal fees, the background of which is set forth in our recent decision (Masson v Wiggins & Masson,LLP, 110 AD3d 1402 [2013]). In that case, Supreme Court (Cerio, J.)determined that, pursuant to the Wiggins & Masson partnership agreement, the amountowed by the partnership to Masson would be determined by a report to be prepared bythe partnership's accountant, Robert Fagliarone (id. at 1404). Walsh wrote a letterto Fagliarone in May 2012 requesting such a report, but included, as relevant here, thefollowing comments: "I also spoke to the [c]ourt following the [d]ecision and aminformed that the [c]ourt considers the accountant's report . . . to beessentially a formality in view of the proof that was advanced in [c]ourt;" "I spoke to the[c]ourt . . . and understand that the [c]ourt is not looking for an elaboratereport;" and "[t]he [c]ourt went so far as to characterize this report requirement. . . as a 'formality.' "
Based on Fagliarone's ensuing report and over plaintiffs' objections, Masson was[*2]awarded a judgment of nearly $86,000 that wasentered in September 2012. In October 2012, plaintiff Edward E. Kopko learned ofWalsh's May 2012 letter to Fagliarone. Kopko then wrote to Supreme Court expressing,among other things, objections to the ex parte communications indicated in Walsh'sletter. The court immediately responded that no such communications had occurred,which Walsh confirmed in a November 2012 letter where he apologized for his"embarrassing and infelicitous choice of words."
Plaintiffs then commenced this action in November 2012 against Walsh, Masson anddefendant True & Walsh, LLP asserting, in their amended complaint, a cause of actionagainst them for prima facie tort, together with claims of respondeat superior liability asto True & Walsh and Masson. Defendants' motions to dismiss for failure to state a causeof action were denied. Defendants appeal.
Defendants argue that plaintiffs failed to allege facts that satisfied the disinterestedmalevolence aspect of a prima facie tort. "To sufficiently allege a cause of action forprima facie tort . . . a plaintiff must plead the intentional infliction of harmwithout justification or excuse, which results in special damages, by one or more actswhich would otherwise be lawful" (Cavanaugh v Doherty, 243 AD2d 92, 101[1998] [citation omitted]). Moreover, "there is no recovery in prima facie tort unlessmalevolence is the sole motive for [the] defendant's otherwise lawful act" (Cusimano v United Health Servs.Hosps., Inc., 91 AD3d 1149, 1153 [2012], lv denied 19 NY3d 801[2012] [internal quotation marks and citation omitted]; see Posner v Lewis, 18 NY3d566, 570 n 1 [2012]). The act "must be a malicious one unmixed with any other andexclusively directed to injury and damage of another" (Burns Jackson Miller Summit& Spitzer v Lindner, 59 NY2d 314, 333 [1983] [internal quotation marks andcitation omitted]; see Lerwick vKelsey, 24 AD3d 931, 932 [2005], lv denied 6 NY3d 711 [2006]). Evenegregious conduct by an attorney during the course of representing a client that aids tosome degree the attorney's client or the attorney's practice generally will not satisfy thedisinterested malevolence requirement of a prima facie tort, because such conduct is notmotivated solely to harm the defendant (see Drago v Buonagurio, 46 NY2d 778,779 [1978]; Lisi v Kanca,105 AD3d 714, 714 [2013]; Shields v Carbone, 78 AD3d 1440, 1442-1443 [2010]).
Here, other than conclusory contentions, there are no facts supporting the assertionthat Walsh wrote the May 2012 letter solely to harm defendants and, in fact, paperssubmitted by plaintiffs reveal that the letter was intended, at least in part, to help Walsh'sclient. While plaintiffs' pleadings are liberally interpreted in the context of a CPLR 3211(a) (7) motion, such liberal standard "will not save allegations that consist of bare legalconclusions or factual claims that are flatly contradicted by documentary evidence or areinherently incredible" (DerOhannesian v City of Albany, 110 AD3d 1288, 1289[2013], lv denied 22 NY3d 862 [2014]; Mesiti v Mongiello, 84 AD3d 1547, 1549 [2011];Fernicola v New York State Ins. Fund, 293 AD2d 844, 844 [2002]).Disinterested malevolence having not been shown, it is not necessary to address the otherelements of a prima facie tort that defendants contend are also lacking.
McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the order is reversed, on thelaw, with costs, motions granted and [*3]amendedcomplaint dismissed.