52 A.D.2d 1030 | N.Y. App. Div. | 1976
Order unanimously reversed, without costs, motion granted and complaint dismissed. Memorandum: We agree with appellant that the amended complaint does not fully comply with the prior order, from which no appeal was taken, dismissing the complaint and authorizing service of an amended complaint. Although the principle of "the law of the case” binds Judges of co-ordinate jurisdiction, including the Judge who made the order, it does not bind appellate courts (Field v Public Administrator of County of N. Y, 10 AD2d 97; see 1 Carmody-Wait 2d, NY Civ Prac, § 2:64). We, therefore, consider the amended complaint on its merits. A cause of action in negligence is not stated, because plaintiff does not plead facts imposing a duty on defendant to disclose the existence of the false affidavit, and plaintiff seeks damages which are not recoverable in a negligence action. Although plaintiff has stated a cause of action in defamation (Triggs v Sun Print. & Pub. Assn., 179 NY 144; Fulton v Ingalls, 165 App Div 323, affd 214 NY 665; 35 NY Jur, Libel and Slander, § 174), and also one for injurious falsehood, with allegations of special damages for counsel fees and litigation expenses (Penn-Ohio Steel Corp. v Allis-Chalmers Mfg. Co., 7 AD2d 441, 444; Feilis v Greenberg, 51 Misc 2d 441; and Restatement, Torts, § 873), these causes of action are barred by the one-year Statute of Limitations (CPLR 215, subd 3; Morrison v National Broadcasting Co., 19 NY2d 453, 459), since the statement was signed on March 28, 1969 and this action was not begun until September 3, 1970. The republication of the statement by another within the one-year period did not save the cause of action in defamation against defendant on the original publication (Macy v New York World-Tel. Corp., 2 NY2d 416, 422; 2 NY PJI 696-697). Moreover, failure of defendant to advise plaintiff of the cause of action did not amount to a concealment so as to estop defendant from pleading the Statute of Limitations (see McLaughlin Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 201, C201:6, pp 59-60; cf. General Stencils v Chiappa, 18 NY2d 125). We find no cause of action stated in prima facie tort, because the acts complained of give rise to another cause of action in tort (Nationwide Carpets v Lenett Pub., 31 AD2d 911). Nor is a cause of action stated for intentional infliction of mental distress, for the allegations that defendant’s employee swore to a false affidavit and failed to disclose its falsity to plaintiffs do not state facts sufficiently shocking or outrageous as to set forth a cause of action for intentional infliction of mental distress (see Nader v General Motors Corp., 25 NY2d 560; Callarama v Associates Discount Corp. of Delaware, 69 Misc 2d 287; 2 NY PJI 617-619). Since plaintiff has failed to state any valid cause of action that is not barred by the Statute of Limitations, Special Term erred in denying the motion to dismiss the complaint. (Appeal from order of Oneida Supreme Court—dismiss complaint.) Present—Simons, J. P., Mahoney, Dillon and Witmer, JJ.