Courtman v Hudson Val. Bank

[*1] Courtman v Hudson Val. Bank 2006 NY Slip Op 50425(U) [11 Misc 3d 1068(A)] Decided on January 6, 2006 Supreme Court, New York County Smith, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 6, 2006
Supreme Court, New York County

Bobb L. Courtman,

against

Hudson Valley Bank, GRIFFIN, COOGAN & VENERUSO, P.C., and MELISSA D. LESCAULT, ESQ., Individually and DOES 1-10,



109891/2005

Karen S. Smith, J.

Upon the foregoing papers, it is ORDERED that this motion to dismiss the complaint herein is granted with respect to all the causes of action set forth in the complaint except the cause of action for false arrest and, with respect to that cause of action, this motion is denied.

As alleged in the complaint herein, this action arises out of incidents surrounding a letter sent by defendants, Griffin, Coogan & Veneruso, P.C. and Melissa D. Lescault (hereafter referred to collectively as the "Moving Defendants"), on behalf of defendant. Hudson Valley Bank (hereafter referred to as "HVB") to the Pasco County, Florida, Sheriff's Office on or about October 23, 2002. The letter stated, inter alia, that; "Mr. Courtman has knowingly stolen $40,000 that does not belong to him and he has put it to his own use." (See Complaint, Paragraph 11). The complaint alleges that the funds question were being held in escrow, on behalf of the plaintiff (hereafter referred as "Courtman"), in an escrow account at HVB and, therefore, were not stolen but, in fact, Courtman's own funds. As a result of the letter, Courtman alleges that he was falsely arrested by the Pasco County Sheriff and put to the time, expense, effort and [*2]embarrassment of having to defend himself against false criminal charges which were ultimately dismissed. Additionally, Courtman alleges that the letter was sent with the intent that Courtman would be arrested in order to harass and intimidate him into returning the funds to the escrow deposit at HVB.

The instant action commenced with the filing of the summons and complaint on July 18, 2005. In the complaint herein, Courtman asserts five causes of action, to wit; libel per se, libel, negligent misrepresentation of facts, false arrest and intentional infliction of emotional distress. The Moving Defendants now move, pursuant to CPLR § 3211 (a) (7), to dismiss the action as against them for failure to state a cause of action and for such other relief as the court may deem just and proper. Additionally, although not set forth in their Notice of Motion, Moving Defendants argue that the causes of action for libel per se, libel and intentional infliction of emotional distress are barred by the one year statute of limitations set forth in CPLR §215. In response, Courtman's counsel argues that the one year time period was tolled pursuant to CPLR §215(8) due to the pending criminal proceedings against Courtman and, therefore, the challenged causes of action are timely. HVB has not joined in or submitted any papers in connection with this motion.

CPLR § 215 establishes a one year statute of limitations with respect to intentional torts (cf. Gallagher v Directors Guild of America, Inc., 144 AD2d 261 [1st Dept 1988]). CPLR §215(8) specifically provides: "Whenever it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises, the plaintiff shall have at least one year from the termination of the criminal action ... in which to commence the civil action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining".

The circumstances presented in the instant case were not addressed by the legislature in enacting CPLR §215(8). CPLR §215(8) speaks to circumstances where specific conduct by an individual both subjects the individual to potential liability for an intentional tort and constitutes criminal activity which becomes the subject of criminal proceedings. Under the circumstances proscribed by the statute, the victim of the criminal activity has one year from the date of the termination of the criminal proceedings within which to bring a civil action against the alleged tortfeasor. The apparent reason for the statute is; "... to relieve the criminal victim of the burden of participating [simultaneously] in two trials based on identical facts' in order to avoid the expiration of the statute of limitations on the civil claim." (CPLR § 215, 1994 Practice Commentary C215:8) (cf. Alford v St. Nicholas Holding Corp., 218 AD2d 622 [1st Dept 1995], Clemens v Nealon, 202 AD2d 747 [3rd Dept, 1994]). In the current matter, the alleged tortfeasors (the Moving Defendants) have not been charged with any criminal activity as a result of the events which are the subject of this proceeding. Courtman may not be considered a "criminal victim" entitled to the benefit of the tolling provisions of the statute. Nor has Courtman offered any citation to any authority which would justify this court's extension of the specific statutory language to the circumstances of this case. [*3]

Courts are constitutionally bound to give effect to the expressed will of the Legislature and the plain and obvious meaning of a statute is always preferred to any curious, narrow or hidden sense that nothing but a strained interpretation of legislative intent would discern. ... It is an elementary principal of statutory construction that courts may only look behind the words of a statute when the law itself is doubtful or ambiguous... (internal citations omitted)

(Finger Lakes Racing Association, Inc. et al v New York State Racing & Wagering Board et al, 45 NY2d 471, 479-80 [1978]).

The provisions of CPLR §251(8) are plain and obvious. They do not apply to the circumstances surrounding the intentional tort claims asserted by Courtman against the Moving Defendants in the current action. The Moving Defendants have properly asserted the statute of limitations with respect to Courtman's first, second and fifth causes of action which must, therefore, be dismissed.

Courtman's fourth cause of action (for false arrest) also sets forth a claim for an intentional tort which would be covered by the one year statute of limitations. However, the Moving Defendants have not argued that this cause of action is time barred. Therefore, the court is left to conclude that they intentionally waived this issue and the court must consider whether Courtman's third and fourth causes of action state viable claims.

The Appellate Division for the First Department has stated:

The scope of a court's inquiry on a motion to dismiss under CPLR 3211 is narrowly circumscribed. The court must accept the facts alleged as true ... and determine simply whether the facts alleged fit within any cognizable legal theory' (Marone v Marone, 50 NY2d 481, 484, 413 NE2d 1154, 429 NYS2d 592 [citation omitted]; see also Guggenheimer v Ginzberg, 43 NY2d 268, 275, 401 NYS2d 182, 372 NE2d 17). The complaint must be construed liberally' (CPLR 3026; see New York Trap Rock Corp. v Town of Clarkstown, 299 NY 77, 85 NE2d 873), and the court must accept as true not only the complaint's material allegations' but also whatever can reasonably be inferred there from' in favor of the pleader (McGill v Parker, 179 AD2d 98, 105, 582 NYS2d 91; see also Cron v Hargro Fabrics, 91 NY2d 362, 366, 670 NYS2d 973, 694 NE2d 56). In ruling on a motion to dismiss, the court is not authorized to assess the merits of the complaint or any of its factual allegations, but only to determine if, assuming the truth of the facts alleged, the complaint states the elements of a legally cognizable cause of action."

(P.T. Bank Central Asia, New York Branch v ABN Amro Bank N.V., 301 AD2d 373,375-376 [1st Dept 2003])

In the instant matter, if the court accepts the facts alleged in Courtman's complaint as true and grants them every favorable inference, Courtman's fourth cause of action sets forth a legally cognizable cause of action against the Moving Defendants. "A plaintiff asserting a common-law claim for false imprisonment must establish that the defendant intended to confine the plaintiff, [*4]that the plaintiff was conscious of the confinement and did not consent to the confinement, and that the confinement was not otherwise privileged." (Martinez v City of Schenectady et al, 97 NY2d 78, 85 [2001]). The complaint in the instant action alleges each of these necessary elements. Additionally, the complaint alleges actual malice and the Moving Defendants reckless disregard of the impact of their actions. Therefore, this cause of action and its demand for punitive damages may not be dismissed pursuant to CPLR §3211 (a) (7).

However, the same may not be said of the third cause of action (negligent misrepresentation). It has long been settled that; "... generally a negligent statement may be the basis for recovery of damages, where there is carelessness in imparting words upon which others were expected to rely and upon which they did act or failed to act to their damage..." (White v Guarente et al, 43 NY2d 356 [1977]). In the instant matter, accepting the allegations in the complaint as true, the complaint does not allege (nor may it be inferred from the allegations contained in the complaint) that any misrepresentations were made to Courtman upon which he acted (or failed to act) to his detriment. Therefore, this cause of action must be dismissed.

Accordingly, it is;

ORDERED: the first, second, third and fifth causes of action in the complaint herein are dismissed as against the Moving Defendants only, and it is;

FURTHER ORDERED: that the branch of the instant motion to dismiss the fourth cause of action (for false arrest) as against the Moving Defendants is denied, and it is;

FURTHER ORDERED: that the Moving Defendants shall serve and file their answer to the portions of the complaint which relate to the remaining cause of action herein within twenty days of service upon them of a copy of this order with notice of entry hereof, and it is;

FURTHER ORDERED: that counsel for all parties in this action shall appear in Part 44 of the Court in Room 581 at 111 Centre Street, New York, New York on February 24, 2006 at 9:30 AM for a preliminary conference.

The foregoing constitutes the decision and order of the court.

Dated: January 6, 2006

Hon. Karen S. Smith, J.S.C.