Napoli v Bern

[*1] Napoli v Bern 2018 NY Slip Op 51193(U) Decided on August 14, 2018 Supreme Court, New York County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 14, 2018
Supreme Court, New York County

Marie Kaiser Napoli, Plaintiff,

against

Marc Jay Bern, CLIFFORD S. ROBERT, THE PARKSIDE GROUP, LLC, BRIAN BRICK, and CATHY BERN, Defendants.



161423/2015



PLAINTIFF Marie Napoli And the following individuals at her firm:

Salvatore Charles Badala

NAPOLI SHKOLNIK PLLC

360 Lexington Avenue, 11th Floor,

New York, NY 10017

2123971000

sbadala@napolilaw.com

Michael Yuri Hawrylchak

mhawrylchak@napolilaw.com

Paul Brian Maslo

pmaslo@napolilaw.com

Russell Stuart Miness

rminess@napolilaw.com

MARK JAY BERN, and The Parkside Group & Brian Brick:

Joseph J Ortego

NIXON PEABODY LLP

55 West 46th Street, New York, NY 10036

212-940-3000

jortego@nixonpeabody.com

Santo Borruso

516-832-7500

sborruso@nixonpeabody.com

CLIFFORD ROBERTS

James M Wicks

FARRELL FRITZ P.C.

400 RXR PLAZA, UNIONDALE, NY 11556-1320 516-227-0617

jwicks@farrellfritz.com

Franklin C Mcroberts

516-227-0786

fmcroberts@farrellfritz.com
Carmen Victoria St. George, J.

In this action, plaintiff Marie Kaiser Napoli sues her husband's former law partner Marc Jay Bern; Bern's attorney, Clifford S. Robert; a publicist who worked with Mr. Bern and Mr. Robert, Brian Brick; and the company for which Mr. Brick worked, The Parkside Group, LLC. She asserts causes of action for 1) defamation, 2) defamation per se, 3) intentional infliction of emotional distress, 4) negligent infliction of emotional distress, 5) abuse of process and malicious prosecution, 6) breach of fiduciary duty, and 7) prima facie tort. The complaint seeks $160,000,000 in compensatory damages and $340,000,000 in punitive damages, for a total of $500,000,000.

Plaintiff commenced this action by filing her summons and complaint on November 5, 2015. She filed an amended complaint on November 17, 2015, and a corrected amended summons on November 20, 2015. Plaintiff served defendants with the amended summons and complaint on March 1, 2016. On May 9, 2016, defendants moved, jointly, to dismiss the lawsuit (motion sequence number 004). On June 27, 2016 plaintiff cross-moved to serve a second amended complaint or, alternatively, to obtain additional time to serve the original amended complaint. In November 2017, the parties stipulated to withdraw this motion and allow plaintiff to file a third amended by December 14, 2017. In addition, the stipulation set up a briefing schedule for a new motion, sequence number 006, and to allow briefing on the issue of collateral estoppel raised in motion sequence number 004 as well as on plaintiff's two additional causes of action. Motion sequence 006 was submitted to the Court after oral argument around May 16, 2018.

Despite the age of this case, before the Court is defendants' joint pre-answer motion to dismiss the complaint. The 190-paragraph complaint is partly devoted to describing Mr. Bern's alleged extra-marital relationships and his treatment of his children, as well as non-party Vanessa Dennis' purported sexual addiction and malicious intent to destroy Ms. Napoli's relationship with her husband Paul Napoli. To the extent possible, the Court narrows its focus to the relevant allegations and the legal issues the parties dispute. Moreover, as this is a pre-answer motion to dismiss the Court accepts plaintiff's allegations as true for the purposes of this motion, gives plaintiff "the benefit of all favorable inferences," and dismisses those claims for which there is no legal basis (Morgan Stanley Mortgage Loan Trust 2006-13ARX v Morgan Stanley Mortgage Capital Holdings LLC, 143 AD3d 1, 8 [1st Dept 2016]). For the reasons below, the Court grants the motion to the extent that it seeks to dismiss the claims for negligent infliction of emotional distress, intentional infliction of emotional distress, malicious prosecution, abuse of process and breach of fiduciary duty. It denies the motion insofar as it seeks to dismiss plaintiff's [*2]defamation, defamation per se, and prima facie tort causes of action.[FN1]

The pertinent facts as stated in the complaint are as follows [FN2] : Ms. Napoli and Mr. Napoli were both attorneys when they met. When they married in 1997, they merged their two law firms, forming Napoli, Kaiser & Associates LLP. Mr. Bern joined the firm as an associate and ultimately became a partner in the joint venture Napoli, Kaiser, Bern & Associates. In 2000, after the birth of her children, Ms. Napoli left the firm for the asserted purposes of raising her children and performing charitable work.

In February 2011, Vanessa Dennis began working as an associate at Napoli, Kaiser, Bern & Associates. At some point, Ms. Dennis and Mr. Napoli began having an affair. Ms. Napoli learned of her husband's affair with Ms. Dennis in April 2013, when the private detective she had hired discovered that Ms. Dennis and Mr. Napoli shared a room while on a business trip in Chicago. Ms. Napoli asserts that "she" fired Ms. Dennis as soon as her husband confirmed the fact of the affair, and Mr. Bern "negotiate[d] the details of [Ms.] Dennis's departure from the firm. . . on behalf of the firm and Marie" (Complaint, ¶ 46). Ms. Napoli told Mr. Bern that Ms. Dennis not receive any severance pay. Nevertheless, the severance package paid Ms. Dennis $150,000.

Ms. Napoli and Mr. Napoli separated for a time, but subsequently reconciled. In retaliation against Ms. Dennis for what she viewed as an effort to destroy Ms. Napoli's family and the lives of her and her children, Ms. Napoli concededly commented on Ms. Dennis' Facebook page, calling her a slut in pictures in which Ms. Dennis' friends were also tagged; and, she told the partners at the Texas law firm where she works, as well as the wives of the male partners, that Ms. Dennis is a sex addict with an appetite for married men.[FN3] The affair between Ms. Dennis and Mr. Napoli, and Ms. Napoli's retaliatory actions, formed the basis of two lawsuits. Ms. Napoli sued Ms. Dennis in Illinois, asserting alienation of affection.[FN4] Especially relevant here, Ms. Dennis filed a lawsuit against Ms. Napoli in Supreme Court, New York County in which she sought, among other things, a restraining order against Ms. Napoli (the Dennis lawsuit). Ms. Dennis commenced her lawsuit on April 22, 2014, and the complaint was e-filed in December 2014.[FN5]

Over the years, the business and personal relationships between Mr. Napoli and Mr. Bern deteriorated. Around Memorial Day weekend, 2014, Mr. Napoli was diagnosed with acute myeloid leukemia (AML) and began aggressive treatment. Mr. Bern took over the management of the firm, a role Mr. Napoli had previously held. At this point, and while Mr. Napoli was still in treatment for AML, Ms. Napoli claims, Mr. Bern attempted to seize control of the firm, firing Mr. Napoli's father and several other employees of the firm in the process.[FN6] In response, Mr. Napoli appointed his wife as Alternate Manager of the firm. On his behalf, Ms. Napoli filed a lawsuit alleging breach of contract and brought an emergency application for a temporary restraining order against Mr. Bern in which she sought to forego notice to Mr. Bern (the partnership case). In October 2014, the application was withdrawn without prejudice to renew.

On November 5, Mr. Bern, through his attorney Mr. Roberts, brought an order to show cause in the partnership case, which sought an order which directed Mr. Napoli to restore Mr. Bern's access to partnership property, to reactivate Mr. Bern's corporate credit card, to mandate that both partners approve expenditures exceeding $5,000, and to temporarily enjoin Mr. Napoli from soliciting the firm's former, current, and prospective clients on his personal behalf. Mr. Bern's affidavit in support of the application included allegations about the ways in which Mr. Napoli purportedly mismanaged the partnership's affairs.

As is relevant here, the affidavit states that Mr. Napoli's lawsuit against him was "baseless" and had been "spearheaded by his wife, Marie Kaiser Napoli, Esq. . . . and father . . . (Bern Aff in Napoli v Bern, Index No. 159576/2014 [Sup Ct, NY County] [NYSCEF Doc. 9 in Mr. Napoli's action] [Bern Aff], at ¶ 11). Furthermore, the affidavit states that when Mr. Napoli's order to show cause had been argued, he discovered "that [Mr. Napoli] had given his wife access to his partnership e-mail account and that she was sending e-mails from his account, and in those emails, she was pretending to be him" (id.). The affidavit goes on to allege that Ms. Napoli previously harmed his and Mr. Napoli's law partnership through "[h]er harassment of former employee Vanessa Dennis" (id., at ¶ 12). In support of his order to show cause, Mr. Bern annexed a draft copy of the complaint for the Dennis lawsuit, alleging that it "outline[d] Ms. Napoli's conduct that has exposed the Partnership to liability" (id.). He stated Mr. Napoli's order to show cause to name his wife as manager of the partnership was denied and that Mr. Napoli ultimately withdrew this application.[FN7] In a footnote, he noted that Justice Eileen Bransten, who presided over the partnership dispute, put procedures "in place to safeguard the operation of the Partnership during [Mr. Napoli's] illness/disability to prevent [Ms.] Napoli. . . from doing further harm to the Partnership (id., ¶ 13 n 3).

Exhibit A to Mr. Bern's order to show cause is the draft complaint, which contains the allegedly defamatory statements. Ms. Napoli asserts that Mr. Bern and Mr. Robert, through the defendant publicists, disseminated Mr. Bern's order to show cause in the partnership case to the media, and included a draft of the Dennis complaint. Ms. Napoli contends that the draft complaint is full of malicious, defamatory lies. She refers to it, repeatedly, as a sham complaint. She further alleges that after the dissemination of the draft complaint, the media covered the [*3]relationships of Ms. Napoli, Mr. Napoli, and Ms. Dennis, and reported false stories based on the draft complaint, causing her emotional distress and threatening her business as an attorney, as she had returned to legal practice. She claims that defendants also provided additional defamatory materials to the New York Post, such as emails Ms. Dennis "created in anticipation of threatened litigation to extort Marie" and which "falsely accused Marie's husband of making derogatory comments about Marie's vagina and her inability to sexually satisfy him" (Complaint, ¶ 86). Ms. Napoli annexes an exhibit of over 100 pages of news stories and other materials which allegedly contain the defamatory statements.[FN8]

In addition, Ms. Napoli claims that Mr. Bern directed an employee and "others" to defame her to her clients in Mr. Bern's attempt to solicit their business. Ms. Napoli states that the lies about her character in the draft complaint also constitute defamation per se because it "imputes that Marie is dishonest and unfit to work in her profession as an attorney" (id., ¶ 158), and "impute criminal activity" to her (id., ¶ 159).[FN9] The complaint additionally asserts causes of action for intentional and negligent infliction of emotional distress based on these allegations.

In support of the fifth cause of action, the complaint alleges that Mr. Bern and Mr. Brick filed sham defamation actions against Ms. Napoli on November 9, 2015 and March 8, 2016. The complaint states that they initiated these actions "for the sole purpose to harass, defame, gain leverage in the instant litigation, and otherwise cause further harm to Marie and her family" (id., ¶ 130). The complaint contends that these actions lacked merit because all her allegations about Mr. Bern are true and thus protected by the First Amendment. The complaint argues that attaching the draft complaint to Mr. Bern's order to show cause in the partnership case was also an abuse of process because the complaint was unverified and unsigned.

The sixth cause of action is for breach of fiduciary duty and relates to Mr. Bern's negotiation of Ms. Dennis' severance package. According to the complaint, at Mr. Bern's May 2, 2013 meeting with Ms. Dennis, "[i]t was understood that [Mr.] Bern was legally representing Marie [Napoli] in these conversations [about Ms. Dennis' departure from the firm]" and that pursuant to Ms. Napoli's instructions, "Dennis was not to receive a dime due to the damage she had caused" (id.). Ms. Napoli's complaint characterizes this as an attorney-client relationship between her and Mr. Bern and states that Mr. Bern's alleged decision to disclose confidential information to Ms. Dennis and pay her $150,000 as a severance fee violated his duties as Ms. Napoli's counsel, including that of attorney-client privilege. In her supplemental brief, plaintiff adds that Mr. Bern and Mr. Napoli's former firm represented her in Dennis v Napoli.

In the alternative to the above claims, the complaint asserts a seventh cause of action, for prima facie tort. The claim states that defendants intentionally harmed Ms. Napoli and their actions caused her special damages which include emotional, personal, professional, and economic injury. In addition, the claim asserts that defendants' actions were unjustified and inexcusable.

Finally, by way of background, defendants refer to a few judicial determinations in [*4]related cases. First, after the New York Post published articles about the partnership lawsuit and reported the contentions in the draft complaint, Ms. Napoli sued the publication, its owner and subsidiaries, and individual writers for libel. On November 4, 2016, Justice Kathryn E. Freed granted defendants' motion to dismiss the complaint in its entirety (Napoli v New York Post, 2016 NY Misc LEXIS 4233*, 2016 NY Slip Op 32268 [U]** [Sup Ct NY County 2016]). In their supplemental brief, defendants argue that Justice Freed's language in Napoli v New York Post collaterally estops Ms. Napoli from asserting defamation here. The decision noted that although the draft complaint had not been finalized, Ms. Dennis already had purchased an index number. The decision indicated that, in support of her defamation claims, plaintiff annexed over 120 pages of articles, only several of which were published by the New York Post. Defendants admitted to the publication of three articles that allegedly included defamatory statements, on November 9, 2014, November 23, 2014, and December 7, 2014.

The court concluded that Civil Rights Law § 74, which protects "publication[s] of a fair and true report of any judicial proceeding," applied to the three articles (id. at *10, **8). The Court further noted that cases such as WA Rte. 9, LLC v PAF Capital LLC (136 AD3d 522, 522 [1st Dept 2016]) recognize an exception to this fair reporting privilege for the publication of sham complaints which include false allegations for the sole purpose of defaming an individual (see Lacher v Engel, 33 AD3d 10 [1st Dept 2006]). The court held that Ms. Napoli did not "adequately allege" that the New York Post and the other defendants were involved in the filing of the alleged sham court document (Napoli v New York Post, 2016 NY Misc LEXIS 4233, at 11*, 2016 NY Slip Op 32268 [U] at 9** [Sup Ct NY County 2016] [New York Post]). Additionally, the court stated that,

considering that this Court (Bransten, J.) ultimately granted large portions of the relief sought in Bern's motion for a preliminary injunction, which was made in the context of Paul Napoli's action against him, it is palpably incredible that his motion papers were a sham brought maliciously and solely for the purpose of defaming plaintiff. Furthermore, [Ms. Napoli's] argument that Dennis' draft complaint against her, sounding in defamation, was a fabrication is utterly refuted by the allegations in plaintiff's own complaint. Most notably, plaintiff admits to having "wr[itten] a . . . letter to [Dennis's current boss's wife] warning her of [Dennis's] behavior" (id. at *11-12, **9).

The New York Post decision additionally refers to the fact that in the final version of the draft complaint, filed in the Dennis lawsuit, Justice Cynthia Kern granted Ms. Dennis' request for a preliminary injunction restraining Ms. Napoli from continuing with the conduct to which the draft and final complaints referred (Dennis v Napoli, 2015 NY Misc LEXIS 3020, 2015 NY Slip Op 31540 [U], aff'd, 148 AD3d 446 [1st Dept 2017]). After Napoli v New York Post was decided, the First Department affirmed Justice Kern's decision, finding that the complaint stated valid causes of action and that plaintiff showed she was likely to succeed on the merits (Dennis v Napoli, 148 AD3d 446 [1st Dept 2017]).

Discussion

Standard of Review

"On a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading is to be given a liberal construction, the allegations in it are assumed to be true, and the plaintiff is to be afforded every favorable inference" (Hyman v Schwartz, 127 AD3d 1281, 1283 [3rd Dept 2015] [citations and internal quotations and markings omitted]; see Scollar v City of New York, 160 AD3d 140, [*5]144 [1st Dept 2018]). The Court evaluates not whether the complaint states a cause of action, but whether a claim exists based on the "any reasonable view" of the allegations in the pleading (Aristy-Farer v State of New York, 29 NY3d 501, 509 [2017]). Where there are "allegations that consist of bare legal conclusions or factual claims that are flatly contradicted by documentary evidence or are inherently incredible," however, dismissal of a claim is appropriate (Hyman, 127 AD3d at 1283). With this standard in mind, the Court turns to the complaint's causes of action.

Defamation and Defamation Per Se

The first and second causes of action allege defamation and defamation per se. Defamation is "the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of [her] in the minds of right-thinking persons, and to deprive [her] of their friendly intercourse in society" (Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]). A claim for defamation must allege special damages unless it is one for defamation per se (Epifani v Johnson, 65 AD3d 224, 233-34 [2nd Dept 2009]). A claim of defamation per se exists when the statement charges the plaintiff with a serious crime, injures the plaintiff's standing in her trade, business or profession, alleges that the plaintiff has a loathsome disease, or "imputes unchastity to a woman" (id. at 234).

In support of their motion to dismiss these claims, defendants state, in their supplemental memorandum, that Justice Freed's decision in the New York Post case has collateral estoppel effect in this action.[FN10] Defendants also argue that the draft complaint is absolutely protected by the litigation privilege. They contend that the draft complaint was not a sham, as it was pertinent to the issues at hand. Finally, they state that plaintiff's complaint is not sufficiently specific in its claims of defamation and defamation per se.

Initially, the Court addresses the threshold issue of collateral estoppel. Collateral estoppel is "a narrower species of res judicata [which] precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" (Wilson v Dantas, 29 NY3d 1051, 1062 [2017]). In Misek-Falkoff v American Lawyer Media, Inc. (300 AD2d 215 [1st Dept 2002]), for example, the plaintiffs were collaterally estopped from suing for defamation in state court after they had sued for defamation, and lost, in federal court based on the publication of the same article.

In New York Post, which involved the newspaper's publication of statements from the draft complaint, the Court examined whether Civil Rights Law § 74 barred the action. This law states that a "person, firm or corporation" cannot be sued "for the publication of a fair and true report of any judicial proceeding" (id.). The privilege, which is absolute, protects reports of official proceedings made in the public interest (see Divet v Reinisch, 169 AD2d 416, 417 [1st Dept 1991]). It is sufficient if the report "is substantially accurate" in the substance of the report" (Birkenfeld v UBS AG, 2018 NY Misc LEXIS 92, *11, 2018 NY Slip Op 30036 [U], *8 [Sup Ct, NY County 2018]). If an article accurately states the content of court papers, the privilege applies (see Russian American Foundation, Inc. v Daily News, L.P., 109 AD3d 410, 412-13 [1st Dept 2013]).

Furthermore, it is not critical that the court papers themselves were inaccurate if the entity which disseminated the information was not aware of the inaccuracy and did not participate in the sham. On this basis, in WA Route 9, LLC v PAF Capital LLC (136 AD3d 522, 522 [1st Dept 2016]), the First Department affirmed the dismissal of a defamation claim against a defendant which disseminated press releases and internet posts relating to a sham complaint. Thus, Justice Freed's comments relating to the purported sham complaint were dicta and were not critical to the ruling. Therefore, it has no collateral estoppel effect.

There also is no collateral estoppel because in the case before this Court, the "fair and true report" privilege (e.g., Highland Capital Management, L.P. v Stern, 157 AD3d 501, 501 [1st Dept 2018]) is not at issue. Instead, the asserted privilege relates to the underlying litigation. Statements made during a lawsuit which are pertinent to the lawsuit also are entitled to an absolute privilege (see Pezhman v Chanel, 157 AD3d 417, 418 [1st Dept], lv denied, 31 NY3d 998 [2018]), but with an exception. The privilege is destroyed "where the underlying lawsuit was a sham action brought solely to defame the defendant" (Flomenhaft v Finkelstein, 127 AD3d 634, 638 [1st Dept 2015]). The question of whether the document was relevant to Mr. Bern's order to show case was not before the Court in New York Post, and therefore plaintiff did not have a full, fair opportunity to litigate it (see Blum v Valentine, 87 AD3d 1100, 1101-02 [2nd Dept 2011]). The Court rejects defendants' argument that the litigation privilege applies here as a matter of law because the draft complaint was relevant to the issues at hand. Instead, this raises an issue of fact not appropriate for CPLR § 3211 disposition.

Defendants additionally argue that the complaint does not plead defamation with sufficient particularity, and they state the causes of action must be dismissed on this basis. They cite Dillon v City of New York (261 AD2d 34, 39-40 [1st Dept 1999]) for the proposition that the complaint must recite the allegedly defamatory words (see also Mitchell v New York Univ., 129 AD3d 542, 543 [2015][FN11] ). In addition, the complaint must set forth "the time when, place where, and manner in which the false statement was made, and specify to whom it was made" (Epifani v Johnson, 65 AD3d 224, 233 [2nd Dept 2009]).

The Court rejects defendant's argument. It is true that the third amended complaint on this issue is not well-crafted, and that the complaint does not state the allegedly defamatory statements in the sham complaint in a centralized fashion and with citations to the pertinent paragraphs in the draft. The third amended complaint, however, includes more specific language than the earlier complaint, on which defendants' argument was based. Moreover, the time, place, and manner in which the statements were made is clear, as the third amended complaint indicates that defendants attached the statements in the form of the draft complaint annexed to Mr. Bern's order to show cause in the partnership case on November 5, 2014.

Intentional Infliction of Emotional Distress

It is well settled that a cause of action for intentional infliction of emotional distress should be dismissed when it duplicates a plaintiff's defamation claim (Matthaus v Hadjedj, 148 AD3d 425, 425 [1st Dept 2017]; see Perez v Violence Intervention Program, 116 AD3d 601, 602 [*6][1st Dept 2014], lv denied, 29 NY3d 915 [2016]). [FN12] Relying on Bacon v Nygard (140 AD3d 577, 578 [1st Dept 2016], the court in Ms. Napoli's case against the New York Post dismissed her intentional infliction of emotional distress cause of action (Napoli v New York Post, 2016 NY Misc LEXIS 4233, 2016 NY Slip Op 32268 [U] [Sup Ct NY County 2016]). Plaintiff does not contest this general principle. Instead, she argues that an independent cause of action is appropriate because her intentional infliction of emotional distress cause of action is based on "so much more" than the dissemination of the draft complaint (Additional Brief in Opposition to Motion Sequence 006 [Supplemental Brief in Opp.], at p 24). In addition, she notes that her complaint alleges "outrageous conduct at a time Plaintiff's husband was dying" which "in fact did produce extreme emotional distress to Plaintiff which continues and will continue until such a time these defamations can be removed and her good reputation restored" (id.). Plaintiff's own argument defeats the cause of action, however, because she makes it clear that the intentional infliction of emotional distress claim is based on the claims of defamation and defamation per se. Accordingly, the third cause of action must be dismissed.

Negligent Infliction of Emotional Distress

The Court next considers the fourth cause of action, for negligent infliction of emotional distress. A valid claim for negligent infliction of emotion distress exists when an individual or entity owing a duty of care harms the plaintiff, resulting in emotional damages (Ornstein v New York City Health & Hosp Corp., 10 NY3d 1, 6 [2008]). These damages are compensable absent accompanying physical injury if the psychological damage results directly from the defendant's actions (Ornstein, 10 NY3d at 6) and the breach "either unreasonably endangers a plaintiff's physical safety or causes the plaintiff to fear for his or her own safety" (E.B. Liberation Publications, Inc., 7 AD3d 566, 567 [2nd Dept 2004]). Furthermore, the cause of action "must be based on allegations of conduct so extreme in degree and outrageous in character as to go beyond all possible bounds of decency, so as to be regarded as atrocious and utterly intolerable in a civilized community" (Wolkstein v Morgenstern, 275 AD2d 635, 636-37 [1st Dept 2000]; see Sheila C. v Povich, 11 AD3d 120, 130-31 [1st Dept 2004]). It is for the court to decide whether the alleged conduct is sufficiently extreme and outrageous to state a claim (id. at 637). After careful consideration, the Court dismisses this claim. The complaint asserts conduct by defendants which, if true, was malicious and damaging. The Court need not determine whether it is extreme and outrageous enough to support a negligent infliction of emotional distress claim however because Ms. Napoli has not adequately alleged that defendants owed a duty to her (Dombrowski v Bulson, 19 NY3d 347, 351 [2012]).

As such, there is no basis to find that the attorney and publicity firms that Mr. Bern hired owe a duty to Ms. Napoli, and Ms. Napoli does not assert that such duty existed. The only legal duty that the complaint alleges Mr. Bern owed to Ms. Napoli was his duty as her attorney while he negotiated the terms of Ms. Dennis' departure from the firm. As stated, Mr. Bern was not acting as her lawyer when he negotiated Ms. Dennis' severance package. As duty is a necessary element of the claim, the cause of action for negligent infliction of emotional distress must be dismissed (see Nachbar v Cornwall Yacht Club, 160 AD3d 972, 973 [2nd Dept 2018]). Even if Mr. Bern had been Ms. Napoli's legal representative, the only conduct in the complaint that is related to his purported duty to Ms. Napoli is the negotiation with Ms. Dennis and the decision to [*7]pay her $150,000 in severance when she left the firm. Although Ms. Napoli did not want Mr. Bern to make this payment, this was not "atrocious and utterly intolerable in a civilized community (Wolkstein, 275 AD2d at 636-37) sufficient to sustain this cause of action at this time.

In her supplemental opposition to defendants' motion to dismiss the third amended complaint, plaintiff contends for the first time that Mr. Bern and Mr. Napoli's law firm represented her in Dennis v Napoli, and that he violated his fiduciary duty with respect to this representation. Ms. Napoli raises these arguments for the first time in the supplemental opposition. Although this Court considers these arguments to amplify and sustain her breach of fiduciary duty claim, the argument is unpersuasive as to the emotional distress causes of action. These new allegations are subsumed in plaintiff's breach of fiduciary duty cause of action, and therefore are duplicative here (see Perez, 116 AD3d at 602). Therefore, Ms. Napoli's argument does not alter this Court's conclusion.

Malicious Prosecution

Plaintiff's prior amended complaint included a cause of action for "frivolous lawsuit." Her third amended complaint clarifies that she sues for malicious prosecution and abuse of process. "The tort of malicious prosecution requires proof of each of the following elements: (1) the commencement or continuation of a proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the plaintiff, (3) the absence of probable cause for the proceeding and (4) actual malice" (Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610, 613 [1st Dept 2015] [dismissing claim under CPLR § 3211] [citations, alterations, and internal quotation marks omitted], lv denied, 28 NY3d 903 [2016]). Here, plaintiff cannot show that the filing of the two summonses with notice constituted "proceeding[s] favorably terminated for purposes of a malicious prosecution claim" (Shawe v Elting, 161 AD3d 585, 586 [1st Dept 2018]). Even if the proceedings had been terminated in her favor, this Court would still dismiss because she has not asserted facts sufficient to allege the absence of probable cause or actual malice (see Facebook, Inc., 134 AD3d at 613). Therefore, this portion of the cause of action is dismissed.

Abuse of Process

Plaintiff also has not stated a cause of action for abuse of process. "The elements of an abuse of process cause of action are (1) regularly issued process, (2) an intent to do harm without excuse or justification, and (3) the use of process in a perverted manner to obtain a collateral objective" (Gidumal v Cagney, 144 AD3d 550, 551 [1st Dept 2016]). Although plaintiff alleges that Mr. Bern filed two actions to intimidate her, under the prevailing law "the institution of a civil action by summons and complaint is not legally considered process capable of being abused" (Goldman v Citicore I, LLC, 149 AD3d 1042, 1044-45 [2nd Dept 2017] [citations and internal quotation marks omitted]). Ms. Napoli has not satisfied the first element of this claim. Therefore, an abuse of process claim does not exist (see Curiano v Suozzi, 63 NY2d 113, 116-17 [1984]; Casa de Meadows Inc. [Cayman Islands] v Zaman, 76 AD3d 917, 921 [1st Dept 2010] [Casa de Meadows]). The Court therefore need not reach the other elements of the cause of action. It notes, as to the second and third elements, that the attachment of the draft complaint to Mr. Bern's order to show cause does not state a claim for abuse of process because the purported process — the order to show cause — had a legitimate purpose (see Casa de Meadows, 76 AD3d at 921).

Breach of Fiduciary Duty

Plaintiff asserts her claim for breach of fiduciary duty for the first time in the third amended complaint. To survive a motion for dismissal, this cause of action must assert (1) that a fiduciary relationship exists, (2) that there was misconduct by the defendant, and (3) that plaintiff suffered damages due to this misconduct (Nachbar, 160 AD3d at 973). Moreover, the complaint must plead the elements of the duty with particularity (see Stang LLC v Hudson Square Hotel, LLC, 158 AD3d 446, 446-47 [1st Dept 2018]).

In relevant part, paragraphs 46-47 of the third amended complaint, Ms. Napoli asserts that when Mr. Bern negotiated a severance package with Ms. Dennis, he acted as Ms. Napoli's attorney. This allegation, however, is belied by the facts as set forth in the complaint. At paragraph 18, the third amended complaint states that Ms. Napoli "left the firm to focus on raising children and taking care of the family." Mr. Napoli designated his wife as the alternate managing partner in the fall of 2014. (see Complaint ¶¶ 64-66). The negotiation with Ms. Dennis took place between those dates, on May 2, 2013 — at which point, according to the complaint, Ms. Napoli was not affiliated with the law firm. Therefore, there is no basis for the complaint's allegation that Mr. Bern represented Ms. Napoli when, on behalf of the firm, he negotiated the terms of the departure of one of the firm's lawyers. Furthermore, Ms. Napoli cannot assert that she sustained damages because her husband's law firm, with which she was not personally affiliated, paid Ms. Dennis a severance. Moreover, the complaint's conclusory assertion that plaintiff believed Mr. Bern to represent her in this negotiation is insufficient to set forth a cause of action. There is no legal claim for breach of fiduciary duty based on these facts.

In affidavits in support of her supplemental opposition papers, however, plaintiff introduces a new theory of liability which does state a cause of action for breach of fiduciary duty. These affidavits allege, for the first time, that the Napoli-Bern firm initially represented her and her husband in Dennis v Napoli, and therefore by attaching a draft version of Dennis' complaint from the action in which the firm represented Ms. Napoli, Mr. Bern violated his fiduciary duty. Although these allegations appear nowhere in plaintiff's third amended complaint and are not clearly articulated in her brief, in a pleading motion to dismiss this Court may consider the additional allegations in support of the challenged cause of action (see North Star Contracting Corp. v MTA Capital Const. Co., 120 AD3d 1066, 1070 n 1 [1st Dept 2014]). Plaintiff supports her allegations with the affidavits of Karim Schultz, a claims analyst at Mr. and Ms. Napoli's home owner's insurance company, and Oguz Ozdemir, a former employee of Napoli, Bern, Ripka, Shkolnik, LLP. Both individuals assert they were aware that there was the attorney-client relationship — Schultz, through a call from Denise Rubin, an associate at the law firm, who asked if the Dennis v Napoli case was covered; and Ozdemir, who states that he was aware of the Dennis v Napoli case through conversations with Mr. Bern and with Ms. Rubin. Thus, plaintiff's supplemental opposition sufficiently sets forth a cause of action for breach of fiduciary duty. Defendants' challenges to the affidavits of Mr. Schultz and Mr. Osdemir go to the evidentiary value of these documents and not to whether a claim has been stated. Furthermore, Mr. Bern cannot deny that he would have had notice of his former firm's representation of plaintiff in a prior action. Therefore, the claim for breach of fiduciary duty is sustained. As movants assert, however, the complaint does not assert that a fiduciary duty existed between the other defendants and Ms. Napoli, so the application seeking dismissal of the sixth cause of action is granted as to Mr. Robert, The Parkside Group, and Mr. Brick.

Prima Facie Tort

Plaintiff's seventh cause of action — the second one, of two, that is newly asserted in [*8]plaintiff's latest complaint — alleges prima facie tort. "A prima facie tort has been defined as 'the infliction of intentional harm, resulting in damage, without excuse or justification, by an act or series of acts which would otherwise be lawful'" (Belsky v Lowenthal, 62 AD2d 319, 322 [1st Dept 1978] [citation and internal quotation marks omitted], aff'd, 47 NY2d 820 [1979]). It is not "a catch-all alternative for every cause of action which cannot stand on its own" (Freihofer v Hearts Corp., 65 NY2d 135, 143 [1985] [citation and internal quotation marks omitted]). Accordingly, in Matthaus, the First Department affirmed the trial court's decision to dismiss plaintiff's cause of action for prima facie tort as duplicative of her defamation claim (see Matthaus, 148 AD3d at 426; see Fleischer v NYP Holdings, Inc., 104 AD3d 536, 538-39 [1st Dept] [also dismissing prima facie tort claim as duplicative of defamation claim], lv denied, 21 NY3d 858 [2013]). This does not require dismissal of the cause of action under CPLR § 3211, however. "[W]here a traditional tort remedy exists, a party will not be foreclosed from pleading, as alternative relief, a cause of action for prima facie tort" (Freihofer, 65 NY2d at 143). Here, plaintiff has pleaded the cause of action in the alternative. Therefore, the Court does not dismiss it. The Court does note that once the defamation claim is established, the prima facie tort cause of action disappears (see Curiano v Suozzi, 63 NY2d 113, 117 [1984]). Therefore, if plaintiff's defamation claim is established, dismissal of the prima facie tort cause of action will be appropriate at that time (Henderson v Olds, 2011 NY Misc LEXIS 6985, *20, 2011 NY Slip Op 33915 [U], **10-11 [Sup Ct Bronx County 2011] [citing Board of Education v Farmingdale Classroom Teacher's Assoc., 38 NY2d 397, 406]).

Conclusion

Ms. Napoli indicated at the initial oral argument of this motion that she would discontinue the claims against co-defendant Cathy Bern. The parties deleted Ms. Bern's name from their captions, but it is not clear whether the complaint has been amended accordingly. Therefore, the Court amends it in this order. In addition, plaintiff states that her complaint also sets forth causes of action for invasion of privacy, malpractice, and tortious interference with business relations. These are not pled in her complaint, but plaintiff argues that "it makes no difference if a plaintiff pleads a cause of action so long as the complaint states facts to support the elements of the claim" (Supp. Brief in Opp., p 29). This principle applies to this Court's determination as to whether her causes of action survive dismissal under CPLR § 3211. It does not allow a plaintiff to add causes of action that are not set forth in the complaint. In addition, plaintiff cannot simply add causes of action by alleging them in a brief. Instead, she must make any applications for affirmative relief by way of motion (see New York State Division of Human Rights v Oceanside Cove II Apt. Corp., 39 AD3d 608, 609 [2nd Dept 2007]). For the reasons above, it is

ORDERED that the motion is granted to the extent of severing and dismissing the third, fourth, and fifth causes of action; and it is further

ORDERED that the motion is granted to the extent of dismissing the sixth cause of action against all defendants except Mr. Bern; and it is further

ORDERED that the remainder of the motion is denied; and it is further

ORDERED that defendants have 30 days from the date this order is e-filed to serve and file their answers to the third amended complaint; and it is further

ORDERED that the caption of this action is amended to omit Cathy Bern as a defendant, and the Trial and Motion Support clerks are directed to amend the caption accordingly; and the new caption shall read:

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY - - PART 34

___________________________________

MARIE KAISER NAPOLI,

Plaintiff,

Index No.: 161423/2015

against -

MARC JAY BERN, CLIFFORD S. ROBERT,

THE PARKSIDE GROUP, LLC, and BRIAN

BRICK,

Defendants.

________________________________________

All future papers shall use the amended caption, and the County Clerk and Trial Support Clerk shall amend their records accordingly to note the change in caption; and it is further

ORDERED that the parties shall appear in Part 34, 80 Centre Street, room 308, at 2:15 pm on October 4, 2018 for a preliminary conference, which shall set forth an expedited timetable for discovery.

Dated: August 14, 2018

ENTER:

____________________________________

CARMEN VICTORIA ST. GEORGE, J.S.C. Footnotes

Footnote 1:The parties' arguments concerning the propriety of the amendments to the complaint were resolved by their November 30, 2017 stipulation.

Footnote 2:The Court sets these forth in some detail, and it will refer to this recitation in any subsequent decisions, adding only what is necessary for the future motions.

Footnote 3:Ms. Dennis also made allegations, some of which she retracted, and others of which plaintiff has denied.

Footnote 4:When plaintiff commenced this lawsuit, Illinois was one of seven states that allowed such a claim. New York is not one of those states. Although pending cases, such as plaintiff's, were unaffected, Illinois abolished the cause of action in 2016. In April 2018, this lawsuit was settled.

Footnote 5:This action was transferred to Nassau County and, on March 27, 2018, Justice R. Bruce Cozzens, Jr. granted Ms. Dennis' motion to discontinue the lawsuit.

Footnote 6:In the partnership lawsuit, Mr. Bern leveled several allegations relating to Mr. Napoli's mismanagement of the firm, but these contentions are not relevant to the case at hand.

Footnote 7:Ms. Napoli has alleged that, instead, Mr. Napoli had withdrew the order to show cause.

Footnote 8:The exhibit also contains emails, images, and lascivious texts purportedly relating to Mr. Bern and his affairs. The Court does not consider these as they are not relevant to the lawsuit.

Footnote 9:She refers to the suggestion in the draft of the Dennis complaint which suggested that Ms. Napoli may have broken into her Houston apartment and stolen her cat.

Footnote 10:Justice Freed's decision was not issued until after the submission of the defendant's brief in support of motion sequence number 004. Therefore, it was not raised until the argument on motion sequence number 006.

Footnote 11:The multiple denials and dismissals of leaves to appeal and leaves to reargue by the Court of Appeals and the United States Supreme Court are omitted from this citation.

Footnote 12:The Court notes that for the same reasons as above, collateral estoppel does not apply here.