DOE v. COUNTY OF WAYNE (1999)

 Supreme Court properly granted the cross motion of defendants Times, Inc. and Ron Holdraker to dismiss the amended complaint against them for failure to state a cause of action.   Michael Hurd, defendant in the criminal action, pleaded guilty to one count of sexual abuse in the third degree in connection with the improper touching of plaintiffs.   Hurd was sentenced to a one-year conditional discharge and fined $500.   Holdraker thereafter wrote a newspaper article criticizing the District Attorney and his staff in connection with Hurd's plea bargain.   The amended complaint does not allege facts sufficient to state a cause of action for intentional infliction of emotional distress, and thus the court properly dismissed that cause of action.   It cannot be said that the article was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community (see, Howell v. New York Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699).

 Because plaintiffs failed to demonstrate that Holdraker breached a duty owed to them (see generally, Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 424 N.E.2d 531, rearg. denied 54 N.Y.2d 831, 443 N.Y.S.2d 1031, 427 N.E.2d 1192), the cause of action for negligence was properly dismissed.   After viewing “the content of the [article], its tone and apparent purpose” (Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 254, 566 N.Y.S.2d 906, 567 N.E.2d 1270, cert. denied 500 U.S. 954, 111 S.Ct. 2261, 114 L.Ed.2d 713), we conclude that the article did not contain false statements about plaintiffs but rather criticized the District Attorney and his staff (see, Brian v. Richardson, 87 N.Y.2d 46, 51, 637 N.Y.S.2d 347, 660 N.E.2d 1126).   Thus, the cause of action for libel was properly dismissed.   Finally, because the amended complaint fails to allege facts sufficient to support a claim of malice toward plaintiffs, the cause of action for prima facie tort was properly dismissed (see, Smith v. County of Livingston, 69 A.D.2d 993, 994, 416 N.Y.S.2d 130).

Order unanimously affirmed without costs.

MEMORANDUM: