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Drury v. Tucker

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 23, 1994
210 A.D.2d 891 (N.Y. App. Div. 1994)

Summary

holding IIED action not time-barred because "plaintiff sufficiently set forth concrete factual allegations of a continuing course of conduct that terminated within one year" of commencement of the action

Summary of this case from Neufeld v. Neufeld

Opinion

December 23, 1994

Appeal from the Supreme Court, Genesee County, Wolf, Jr., J.

Present — Green, J.P., Lawton, Fallon, Doerr and Davis, JJ.


Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in dismissing the complaint insofar as it alleges a cause of action for intentional infliction of emotional distress. Plaintiff's action was not barred by the one-year Statute of Limitations (see, CPLR 215; Gallagher v Directors Guild, 144 A.D.2d 261, lv denied 73 N.Y.2d 708) because plaintiff sufficiently set forth concrete factual allegations of a continuing course of conduct that terminated within one year of plaintiff's commencing this action (see, Misek-Falkoff v International Bus. Machs. Corp., 162 A.D.2d 211, lv denied 76 N.Y.2d 708; cf., Weisman v Weisman, 108 A.D.2d 852, 854). We further conclude that plaintiff's allegations are sufficient to raise a factual issue whether defendant's conduct toward him was outrageous in character and extreme in degree (see, Murphy v American Home Prods. Corp., 58 N.Y.2d 293, 303; see also, Howell v New York Post Co., 81 N.Y.2d 115, 121-122; Freihofer v Hearst Corp., 65 N.Y.2d 135, 143).

The complaint, insofar as it can be construed as alleging a cause of action in prima facie tort, was properly dismissed. A plaintiff who can allege a traditional tort may not rely upon a theory of prima facie tort to avoid the one-year Statute of Limitations for intentional torts (see, Jones v City of New York, 161 A.D.2d 518, 519; see also, Curiano v Suozzi, 63 N.Y.2d 113, 117-119).

The court should have granted plaintiff's motion for renewal of defendant's motion to disqualify plaintiff's attorney and, upon renewal, should have denied the motion. A disqualification motion must be "carefully scrutinized" because it "denies a party's right to representation by the attorney of [his] choice" (S S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 N.Y.2d 437, 443). Plaintiff demonstrated that defendant's grounds for seeking disqualification were without merit and that the motion was made to gain a "strategic advantage" over plaintiff (S S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., supra, at 443). Moreover, plaintiff was unsuccessful in his effort to secure the services of another attorney.


Summaries of

Drury v. Tucker

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 23, 1994
210 A.D.2d 891 (N.Y. App. Div. 1994)

holding IIED action not time-barred because "plaintiff sufficiently set forth concrete factual allegations of a continuing course of conduct that terminated within one year" of commencement of the action

Summary of this case from Neufeld v. Neufeld

finding IIED claim not time barred based on continuing wrong theory

Summary of this case from Samtani v. Cherukuri

In Drury v. Tucker, 210 A.D.2d 891, 621 N.Y.S.2d 822 (4th Dep't.1994), the Court held that plaintiff's action for intentional infliction of emotional distress was not barred by the statute of limitations, "because plaintiff sufficiently set forth concrete factual allegations of a continuing course of conduct that terminated within one year of plaintiff's commencing this action."

Summary of this case from Bonner v. Guccione
Case details for

Drury v. Tucker

Case Details

Full title:RICK DRURY, Appellant, v. THOMAS TUCKER, Respondent. (Appeal No. 1.)

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 23, 1994

Citations

210 A.D.2d 891 (N.Y. App. Div. 1994)
621 N.Y.S.2d 822

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