Dorian v. City of New York

Jun 4, 2015
Versions:129 A.D.3d 445
9 N.Y.S.3d 577

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered September 18, 2013, which, to the extent appealed from as limited by the briefs, denied plaintiff‘s motion for renewal (denominated a motion for reargument) of a prior order, same court and Justice, entered June 6, 2013, granting defendants’ motion to dismiss, pursuant to CPLR 3212 (a) (7), plaintiff‘s causes of action for punitive damages, federal civil rights violations, abuse of process, and intentional infliction of emotional distress, and granting defendants’ motion for a change of venue as to her causes of action for assault and excessive force, unanimously affirmed, without costs.

Plaintiff presented additional facts in her papers on her “reargument” motion and, accordingly, we treat the motion as one for renewal, the denial of which is appealable (see Mejia v Nanni, 307 AD2d 870, 871 [1st Dept 2003]; Sementilli v Ruscigno, 286 AD2d 242, 243 [1st Dept 2001]).

The court, however, properly denied plaintiff‘s motion. Plaintiff failed to state facts constituting valid causes of action for abuse of process (Curiano v Suozzi, 63 NY2d 113, 116 [1984]); intentional infliction of emotional distress (LoPresti v Florio, 71 AD3d 574, 574-575 [1st Dept 2010]); or a violation of her federal civil rights (Monell v New York City Dept. of Social Servs., 436 US 658, 694 [1978]). Moreover, even assuming that plaintiff‘s punitive damages claim was meant to be part of her intentional tort claims (Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 616 [1994]), and not a separate claim (see Rivera v City of New York, 40 AD3d 334, 344 [1st Dept 2007], lv dismissed 16 NY3d 782 [2011]), punitive damages are not recoverable against a state or its political subdivisions, which includes a municipality (Sharapata v Town of Islip, 56 NY2d 332, 334, 338-339 [1982]).

The court properly granted defendants’ motion for a change of venue to Richmond County pursuant to CPLR 504 (3).

Concur—Tom, J.P., Sweeny, Moskowitz, DeGrasse and Richter, JJ.