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Marine Midland Bank v. Renck

Appellate Division of the Supreme Court of New York, Second Department
Oct 17, 1994
208 A.D.2d 688 (N.Y. App. Div. 1994)

Opinion

October 17, 1994

Appeal from the Supreme Court, Westchester County (Burrows, J.).


Ordered that the order is affirmed, with costs.

The Supreme Court properly dismissed the appellants' counterclaims. The first counterclaim, purportedly sounding in prima facie tort and interference with contractual relations, was subject to a three-year Statute of Limitations (see, Classic Appraisals Corp. v. DeSantis, 159 A.D.2d 537; Jemison v Crichlow, 139 A.D.2d 332, 336, affd 74 N.Y.2d 726; cf., Morrison v. National Broadcasting Co., 19 N.Y.2d 453, 459-460). The alleged acts occurred no later than March of 1986 and the counterclaim was therefore untimely when the answer was served in August of 1991.

While the third counterclaim is not untimely on its face, it was properly dismissed for failure to state a cause of action. As a cause of action for prima facie tort, the third counterclaim fails to allege special damages (see, Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142-143; Schlotthauer v. Sanders, 143 A.D.2d 84, 85). As a cause of action for interference with contractual relations, there is no allegation that the plaintiff intentionally induced a third party to breach an existing contract (see, Kronos, Inc. v AVX Corp., 81 N.Y.2d 90, 94).

Similarly deficient is the second counterclaim for fraud, which fails to allege that the misrepresentations by the plaintiff were intended to induce reliance by the appellants, or that the appellants relied on the alleged misrepresentations to their detriment (see, Vermeer Owners v. Guterman, 78 N.Y.2d 1114, 1116; 107 Realty Corp. v. National Petroleum U.S.A., 181 A.D.2d 817, 818; Clearview Concrete Prods. Corp. v. S. Charles Gherardi, Inc., 88 A.D.2d 461, 467).

Because the appellants do not dispute their default on the subject mortgage note, the Supreme Court properly granted summary judgment to the plaintiff. Mangano, P.J., Thompson, O'Brien and Ritter, JJ., concur.


Summaries of

Marine Midland Bank v. Renck

Appellate Division of the Supreme Court of New York, Second Department
Oct 17, 1994
208 A.D.2d 688 (N.Y. App. Div. 1994)
Case details for

Marine Midland Bank v. Renck

Case Details

Full title:MARINE MIDLAND BANK, N.A., Respondent, v. ROBERT L. RENCK, JR., et al.…

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

Date published: Oct 17, 1994

Citations

208 A.D.2d 688 (N.Y. App. Div. 1994)
617 N.Y.S.2d 507

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