Opinion
570230/05, 05-152.
Decided February 8, 2006.
Defendant 288 St. Nick LLC appeals from an order of the Civil Court, New York County (Analisa Torres, J.), entered November 5, 2004, which, inter alia, denied its motion to dismiss the complaint for failure to state a cause of action.
Order (Analisa Torres, J.), reversed, with $10 costs, defendant-appellant's motion granted, and the complaint dismissed as against it. The Clerk is directed to enter judgment accordingly.
PRESENT: Suarez, P.J., Davis, Schoenfeld, JJ
Giving plaintiffs' allegations every favorable intendment, they appear largely to seek recovery for emotional distress intentionally inflicted by means of the defendant-landlord's abusive lawsuits and breaches of the warranty of habitability. However, the documentary evidence conclusively establishes that none of the nonpayment proceedings instituted by defendant against plaintiffs was brought without justification and that no unlawful process was employed. The warranty of habitability claims now asserted by plaintiffs were raised in the underlying nonpayment proceedings and resolved in "so-ordered" settlement stipulations. Those claims, together with plaintiffs' constructive eviction claims which could have been, but were not raised in the prior proceedings, may not now be asserted in the guise of a tort claim. Nor do the actions attributed to defendant in connection with the building's maintenance constitute the type of extreme, outrageous conduct necessary to support a cause of action for the intentional infliction of emotional distress ( see Howell v. New York Post Co., 81 NY2d 115, 121-122; Hartman v. 536/540 E. 5th St. Equities, Inc., 19 AD3d 240, 241) or demonstrate the disinterested malevolence required to support a cause of action for prima facie tort ( see Hakim v. Paine Webber, Inc., 261 AD2d 578, 579; see also Wehringer v. Helmsley-Spear, Inc., 91 AD2d 585, affd 59 NY2d 688). To the extent that plaintiffs' proposed amended complaint seeks damages based upon "atrocious" building conditions under a negligence theory, that cause of action must also be dismissed since the vague and speculative allegations contained in plaintiffs' affidavits fail to identify any specific negligent act or omissions on defendant's part.
This constitutes the decision and order of the court.