99 A.D.2d 797 | N.Y. App. Div. | 1984
Appeal by defendants from an order of the Supreme Court, Westchester County (Daronco, J.), entered July 23,1982, which denied their motion to dismiss the five causes of action pleaded in the tenant’s amended verified complaint for legal insufficiency pursuant to CPLR 3211 (subd [a], par 7). Order modified, on the law, by granting the defendants’ motion to dismiss only as to the third cause of action. As so modified, order affirmed, without costs or disbursements. Viewing the allegations of the complaint in the perspective most favorable to the plaintiff, we conclude that the facts alleged are legally sufficient to state a cause of action for breach of the implied warranty of habitability (cause of action No. 1), wrongful constructive eviction predicated upon the landlords’ breach of the covenant of quiet enjoyment and plaintiff’s vacatur of the apartment (cause of action No. 2), intentional infliction of emotional distress (cause of action No. 4), and negligence (cause of action No. 5). The designated third cause of action, which purports to plead a prima facie tort, is legally insufficient because it fails to allege the essential element of special damages with sufficient particularity (Morrison v National Broadcasting Co., 19 NY2d 453,458; Motif Constr. Corp. v Buffalo Sav. Bank, 50 AD2d 718,719, app dsmd 38 NY2d 894; Groat v Town Bd., 100 Mise 2d 326). Moreover, the defects are more than those of pleading. “ ‘[T]he key to the prima facie tort is the infliction of intentional harm, resulting in damage, without excuse or justification, by an act or a series of acts which would otherwise be lawful’ ” (ATI, Inc. v Ruder & Finn, 42 NY2d 454, 458; emphasis supplied). Apparently, plaintiff is seeking to recover damages in the third designated cause of action predicated upon the defendants’ prior summary proceeding to remove plaintiff as a tenant from the demised premises. One can only infer from the allegations in paragraph 21 of the amended verified complaint that the landlord was successful in accomplishing the removal of plaintiff through a legal proceeding. Said inference vitiates the essential element that defendants’ act in commencing the legal proceedings was without legal excuse or justification and intended solely to injure plaintiff in her trade, occupation, professional reputation or property (see Lincoln First Bank v Barstro & Assoc. Contr., 49 AD2d 1025). Additionally we agree with defendants that the allegations in the designated fourth cause of action are insufficient to state all the necessary elements of a cognizable cause of action for abuse of process. There are three essential elements of the tort of abuse of process: first, there must be regularly issued process, civil or criminal, compelling the performance or forbearance of some prescribed act; second, the person activating the process must be moved by a purpose to harm without