Opinion
03-02-2017
Christina MATTHAUS, Plaintiff–Appellant–Respondent, v. Michael HADJEDJ, Defendant–Respondent–Appellant.
Jaroslawicz & Jaros PLLC, New York (David Tolchin of counsel), for appellant-respondent. Golenbock Eiseman Assor Bell & Peskoe LLP, New York (Alexander K. Parachini of counsel), for respondent-appellant.
Jaroslawicz & Jaros PLLC, New York (David Tolchin of counsel), for appellant-respondent. Golenbock Eiseman Assor Bell & Peskoe LLP, New York (Alexander K. Parachini of counsel), for respondent-appellant.
FRIEDMAN, J.P., ANDRIAS, FEINMAN, KAPNICK, GESMER, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered January 12, 2016, which granted defendant's motion pursuant to CPLR 3211(a)(7) to the extent of dismissing plaintiff's fourth and fifth causes of action alleging intentional infliction of emotional distress and prima facie tort, and denied the motion to the extent it sought dismissal of the second and third causes of action for malicious prosecution and false arrest, unanimously affirmed, without costs.
Supreme Court properly granted defendant's motion to dismiss plaintiff's claim for intentional infliction of emotional distress as duplicative of her defamation cause of action (see Fischer v. Maloney, 43 N.Y.2d 553, 558, 402 N.Y.S.2d 991, 373 N.E.2d 1215 [1978] ; Akpinar v. Moran, 83 A.D.3d 458, 459, 922 N.Y.S.2d 8 [1st Dept.2011], lv. denied 17 N.Y.3d 707, 2011 WL 3925035 [2011] ). Moreover, plaintiff's factual allegation that defendant made false statements to the police, causing her arrest and incarceration, was insufficient as a matter of law to constitute extreme and outrageous behavior to sustain the claim (see Slatkin v. Lancer Litho Packaging Corp., 33 A.D.3d 421, 822 N.Y.S.2d 507 [1st Dept. 2009] ). Plaintiff's cause of action for prima facie tort was also properly dismissed as duplicative of her defamation claim (see Curiano v. Suozzi, 63 N.Y.2d 113, 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324 [1984] ), and, in any event, was insufficient to state a cause of action because she failed to allege special damages (see Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142–143, 490 N.Y.S.2d 735, 480 N.E.2d 349 [1985] ).
Regarding defendant's cross appeal, the court properly denied the motion to dismiss those causes of action alleging malicious prosecution and false arrest. Contrary to defendant's contention, plaintiff's allegation that defendant knowingly provided false information to the police, in retaliation for a domestic dispute, was sufficient to demonstrate that he initiated the proceeding (see Brown v. Sears Roebuck & Co., 297 A.D.2d 205, 210, 746 N.Y.S.2d 141 [1st Dept.2002] ). Similarly, plaintiff's factual allegations can form the basis of a claim for false arrest (compare Du Chateau v. Metro–North Commuter R.R. Co., 253 A.D.2d 128, 132–133, 688 N.Y.S.2d 12 [1st Dept.1999] ).
We have considered the parties' remaining arguments and find them unavailing.