Sapienza v Notaro

[*1] Sapienza v Notaro 2016 NY Slip Op 51836(U) Decided on November 14, 2016 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 14, 2016
Supreme Court, Queens County

Richard Sapienza, Jr., Plaintiff,

against

Philip Notaro, Jr.; THE LAW OFFICE OF MICHAEL A. KOFSKY, PLLC, a New York professional service limited liability company; and MICHAEL A. KOFSKY, Defendants.



700060/2016
Robert J. McDonald, J.

The following electronically filed documents read on this motion by defendants THE LAW OFFICE OF MICHAEL A. KOFSKY, PLLC, a New York professional service limited liability company and MICHAEL A. KOFSKY for an Order pursuant to CPLR 3211(a)(5) & (7), dismissing the amended complaint based upon the expiration of the applicable statutes of limitation and for a failure to state a cause of action, and granting said defendants sanctions against plaintiff and his attorney; and on this cross-motion by plaintiff for an Order pursuant to CPLR 3025(b), permitting plaintiff to serve and file a Second Amended Complaint, and for sanctions and costs against moving defendants:

Papers/Numbered

Notice of Motion-Affs.-Exhibits-Memo. of Law...........EF 27 - 37

Notice of Cross-Motion-Affs.-Exhibits-Memo. of Law.....EF 39 - 67

Reply Affirmation & Opp. to Cross-Motion...............EF 71 - 72

Reply Affirmation......................................EF 76 - 82

Correspondence.........................................EF 83

The Amended Complaint alleges that this action arises out of a campaign by defendant Philip Notaro, Jr. and his attorneys to pursue meritless claims against plaintiff in at least three different forums for the purpose of extorting a settlement from plaintiff. In December 2007, Notaro commenced an action against plaintiff in New Jersey. Plaintiff ultimately succeeded on a summary judgment motion dismissing the complaint. In April 2010, Notaro, represented by defendants Michael A. Kofsky and The Law Office of Michael A. Kofsky, a New York professional service limited liability company (collectively hereinafter the Kofsky defendants), commenced an action in the Queens County Supreme Court alleging claims based on the same facts that had been alleged in the New Jersey action. Plaintiff was granted summary judgment on the ground of res judicata. Additionally, the Court in the Order dated October 14, 2015 (Kitzes, J.), which dismissed the action, found that Notaro's conduct was frivolous in continuing to pursue the Queens County Action well after it was apparent, or should have been apparent, that Notaro's alleged claims were frivolous.

Thereafter, plaintiff commenced this action on January 5, 2016 by filing a summons and complaint. An Amended Complaint was filed on June 24, 2016. Plaintiff seeks to recover damages for malicious prosecution, tortious interference with advantageous business relationship, and intentional infliction of emotional distress. The Kofsky defendants now move to dismiss the complaint on the grounds that plaintiff's claims are time-barred and the complaint fails to state a cause of action. The Kofsky defendants also seek sanctions against plaintiff and his attorneys. Plaintiff cross-moves for leave to file a second amended complaint and for sanctions against the Kofsky defendants and their attorneys.

Malicious Prosecution of the New Jersey Action:

A malicious prosecution cause of action has a one-year statute of limitations, which begins to run upon the termination of the underlying prior proceeding (see CPLR 215[3]; Williams v CVS Pharmacy, Inc., 126 AD3d 890 [2d Dept. 2015]; Roman v Comp USA, Inc., 38 AD3d 751 [2d Dept. 2007]).

The Amended Complaint alleges that the New Jersey action was terminated on July 15, 2014. Thus, this action was commenced more than one year from the time the New Jersey action was terminated.

Accordingly, the cause of action for malicious prosecution of the New Jersey action is time-barred. Additionally, this Court [*2]notes that plaintiff's proposed second amended complaints removes this cause of action.

Malicious Prosecution of the Queens County Action:

Plaintiff's cause of action for malicious prosecution of the Queens County action is timely.

The Kofsky defendants seek to dismiss plaintiff's cause of action for malicious prosecution of the Queens County action on the grounds that the amended Complaint fails to state a cause of action.

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314 [2002]; Leon v Martinez, 84 NY2d 83[1994]; Greer v National Grid, 89 AD3d 1059 [2d Dept. 2011]; Prestige Caterers, Inc. v Siegel, 88 AD3d 679[2d Dept. 2011]).

A complaint must allege the material elements of the cause of action (see Lewis v Village of Deposit, 40 AD2d 730 [1972]; Kohler v Ford Motor Company, Inc., 93 AD2d 205 [3d Dept. 1983]). Generally, the test of the sufficiency of the complaint is whether it gives sufficient notice of the transaction, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments (see Moore v Johnson, 147 AD2d 621 [1989]; JP Morgan Chase v J.H. Elec. of New York, Inc., 69 AD3d 802[2d Dept. 2010]). However, a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) (see CPLR 3211[c]; Sokol v Leader, 74 AD3d 1180 [2d Dept. 2010]). When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one (see Basile v Wiggs, 98 AD3d 640 [2d Dept. 2012]).

The elements necessary to maintain a cause of action for malicious prosecution are: (1) the initiation of a proceeding by the defendant; (2) its termination in favor of plaintiff; (3) a lack of probable cause; and (4) malice (see Hornstein v Wolf, 109 AD2d 129 [2d Dept. 1985]; Colon v City of New York, 60 NY2d 78 [1983]).

The Amended Complaint alleges that Notaro and Kofsky lacked any reasonable cause to believe that the Queens County Action would be successful, and that they had knowledge that such action was barred by res judicata. Additionally, the Amended complaint states that the Queens County Action was initiated by malice in that it was filed and continued with a purpose other than the adjudication of a claim.

Viewing the facts in the complaint as true and according plaintiff the benefit of every possible favorable inference, this Court finds that the Amended Complaint does state a cause of action for malicious prosecution of the Queens County Action. Although the Kofsky defendants contend that plaintiff failed to allege the element of malice, the Amended Complaint alleges that Kofsky continued the Queens County Action with the improper purpose of extorting a settlement. Specifically, Kofsky emailed plaintiff's counsel seeking to negotiate a settlement based on claims that were already barred by res judicata due to the New Jersey Action. Accordingly, this Court finds that plaintiff sufficiently pled malice, which is defined as a purpose other than the adjudication of a claim (see Engel v CBS, Inc., 93 NY2d 195 [1999]).

As to the Kofsky defendants' claim that plaintiff failed to plead a special injury, to allege a special injury, a plaintiff must assert "some concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit" (Engel v CBS, Inc., 93 NY2d 195, 205 [1999]). Here, the complaint sufficiently alleges that plaintiff suffered a special injury in that Performance Team declined to renew his employment contract or otherwise continue a business relationship solely because Performance Team had been named as a defendant in the Queens County Action. Thus, accepting the facts as alleged in the complaint as true, plaintiff has alleged a specific special injury that is more than just the expense of defending the actions.

Accordingly, this Court finds that plaintiff sufficiently pled a cause of action for malicious prosecution in the Queens County Action.

Tortious Interference with Advantageous Business Relationship:

A tortious interference claim has a three year statute of limitations (see CPLR 214[4]; Pursnani v Stylish Move Sportswear, Inc., 92 AD3d 663 [2d Dept. 2012]). The statute of limitations begins to run on the date of injury or when all of the elements of the tort could be truthfully alleged (see Snyder v Town Insulation, 81 NY2d 429 [1993]). The cause of action for tortious [*3]interference is not enforceable until damages are sustained and that point, rather than the wrongful act of the defendant or discovery of the injury by plaintiff, is the relevant date for marking accrual (see Kronos, Inc. v AVX Corp., 81 NY2d 90 [1993]).

The Kofsky defendants allege that it was the filing of the Queens County Action naming Performance Team as a defendant therein which interfered with the business relationship between plaintiff and Performance Team. Thus, the Kofsky defendants argue that as the Queens County Action was filed in April 2010, the cause of action for tortious interference is time-barred.

In opposition, plaintiff alleges that the earliest possible date of injury was the conclusion of the lawsuit as all of the elements of the tort could not have been alleged until that time. Specifically, plaintiff argues that he could not have alleged that the Queens County Action was frivolous until the action was dismissed as such in October 2015.

While this Court disagrees with plaintiff in that plaintiff would have been able to allege that the Queens County Action was frivolous on the date it was filed as plaintiff knew that the Queens County Action was based on the same claims as the prior action, the cause of action for tortious interference is still timely. This Court finds that the date of injury was January 1, 2014 when Performance Team would have offered plaintiff a contract of employment for an additional four year period, but failed to do so. Plaintiff could not have alleged an injury until the contract was not renewed. Additionally, the Amended Complaint alleges not only that it was the filing of the Queens County Action but that it was also the prosecution of the action which interfered with the business relationship. As such, this cause of action is timely.

The Kofsky defendants also seek to dismiss this claim on the ground that the Amended Complaint fails to state a cause of action. To state a claim for tortious interference, a plaintiff must allege defendant's knowledge of a contract between plaintiff and a third party, and defendant's intentional inducement of that third party to breach or otherwise render performance impossible resulting in damages (see Kronos, Inc. v AVX Corp., 81 NY2d 90 [1993]; Israel v Wood Dolson Co., 1 NY2d 116 [1956]; Washington Ave. Assoc. v Euclid Equip., 229 AD2d 486 [2d Dept. 1996]).

The Amended Complaint alleges that plaintiff had a business relationship with Performance Team and that defendants knew of this relationship. The Amended Complaint further alleges that by [*4]continuing the Queens County Action, defendants interfered with plaintiff's business relationship with Performance Team.

The Kofsky defendants argue that the filing of litigation falls within the protection of the Noerr-Pennington Doctrine. Plaintiff argues that the sham exception to the Noerr-Pennington Doctrine applies because defendants acted solely out of malice in continuing the baseless and frivolous Queens County Action.

The Noerr-Pennington Doctrine has been applied to bar claims of tortious interference premised upon commencement of litigation (see I.G. Second Generation Partners, L.P. v Duane Reade, 17 AD3d 206 [1st Dept. 2005]; Alfred Weissman Real Estate, Inc., 268 AD2d 101 [2d Dept. 2000]). The sham exception applies in situations in which a litigant uses the litigation, as opposed to the outcome of the litigation, as an anticompetitive weapon (see Singh v Sukhram, 56 AD3d 187 [2d Dept. 2008]). The sham exception requires that the defendant's conduct be objectively baseless with no reasonable expectation of success, and that the defendant acted with the intent to interfere directly with the business relationship (see id.).

Viewing the facts in the complaint as true and according plaintiff the benefit of every possible favorable inference, this Court finds that the Amended Complaint sufficiently alleges a cause of action for tortious interference because the sham exception applies. After the same claims asserted in the Queens County Action were fully adjudicated in the New Jersey Action, and after the Appellate Division of the Superior Court of the State of New Jersey affirmed the grant of summary judgment, the Kofsky defendants had no expectation of success in the Queens County Action. Additionally, the Amended Complaint sufficiently alleges that defendants continued the Queens County Action out of malice and solely to force a settlement.

Intentional Infliction of Emotional Distress

An action for intentional infliction of emotional distress shall be commenced within one year (see CPLR 215; Kwarren v Am. Airlines, 303 AD2d 722 [2d Dept. 2003]; Campbell v Chabot, 189 AD2d 746 [2d Dept. 1993]).

The Amended Complaint in regards to the Kofsky defendants alleges that Kofsky sent four e-mails to plaintiff's counsel on April 20, 2012, September 18, 2012, September 14, 2015, and September 24, 2015. Accordingly, the two emails sent in 2012 are time-barred (see Weisman v Weisman, 108 AD2d 853 [2d Dept. 1985][finding that a claim for intentional infliction of [*5]emotional distress can only be maintained with respect to the incidents occurring within the one-year statute of limitations period]).

The elements of a claim of intentional infliction of emotional distress are: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress (see Howell v New York Post Co., Inc., 81 NY2d 115 [1993]).

As the e-mails were sent to plaintiff's counsel in the context of adversarial litigation, this Court finds that the e-mails do not provide a foundation for a claim of intentional infliction of emotional distress (see Lazich v Vittoria & Parker, 189 AD2d 753 [2d Dept. 1993]; Yalkowsky v Century Apts. Assoc., 215 AD2d 214 [1st Dept. 1995]).

Leave to File the Second Amended Complaint:

Plaintiff cross-moves for leave to file a proposed second amended complaint. CPLR 3025(b) allows a party to amend its pleadings by setting forth additional transactions or occurrences at any time by leave of court or by stipulation of all parties. In the absence of significant prejudice or surprise to the opposing party, leave to amend a pleading should be freely given unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957 [1983]; Russo v Lapeer Contr. Co., Inc., 84 AD3d 1344 [2d Dept. 2011]; Martin v Village of Freeport, 71 AD3d 745 [2d Dept. 2010]; Malanga v Chamberlain, 71 AD3d 644 [2d Dept. 2010]).

Here, the second proposed amended complaint is nearly identical to the Amended Complaint except that the cause of action for malicious prosecution of the New Jersey Action has been removed. Accordingly, defendants cannot claim significant prejudice or surprise, and the proposed amendments are not patently devoid of merit. As such, this branch of the cross-motion is granted.

Sanctions

The parties' requests for sanctions pursuant to 22 NYCRR 130-1.1 for frivolous conduct are denied.

Conduct is frivolous under 22 NYCRR 130-1.1 if it is [*6]"completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law", if it is "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injury another", or if "it asserts material factual statements that are false."

As neither party's motion was completely without merit, this Court finds that under the circumstances sanctions are not warranted.

Accordingly, for all of the above stated reasons, it is hereby,

ORDERED, that defendants THE LAW OFFICE OF MICHAEL A. KOFSKY, PLLC, a New York professional service limited liability company and MICHAEL A. KOFSKY's motion to dismiss is granted to the extent that the causes of action for malicious prosecution of the New Jersey Action and intentional infliction of emotional distress are hereby dismissed as against defendants THE LAW OFFICE OF MICHAEL A. KOFSKY, PLLC, a New York professional service limited liability company and MICHAEL A. KOFSKY. The causes of action for malicious prosecution of the Queens County Action and tortious interference with advantageous business relationship remain; and it is further

ORDERED, that plaintiff's cross-motion is granted to the extent that plaintiff shall serve a copy of the Second Amended Complaint in the proposed form annexed to the moving papers as Exhibit "A" along with of a copy of this order with notice of entry in conformance with the rules of service; and it is further

ORDERED, that the defendants shall serve an answer to the second amended complaint within 20 days from the date of said service.

Dated: November 14, 2016

Long Island City, NY

_______________________

ROBERT J. MCDONALD

J.S.C.