CINQUE v. GLEN OAKS VILLAGE OWNERS INC (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for trespass and prima facie tort, the defendants appeal from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered February 25, 2025.  The order denied the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging prima facie tort, and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed, with costs to the plaintiff.

In September 2023, the plaintiff commenced this action to recover damages for trespass, intentional infliction of emotional distress, and prima facie tort.  The complaint alleged the following.  The plaintiff was a shareholder in the defendant Glen Oaks Village Owners, Inc. (hereinafter Glen Oaks), a cooperative apartment corporation, and a resident of an apartment owned by Glen Oaks. In the morning on May 31, 2023, while the plaintiff was out of her apartment, the defendants Gina Catania and Justin Conklin, employees of Glen Oaks, forcibly entered the apartment without the plaintiff's permission, ransacked the apartment, took photographs, removed some of the plaintiff's personal property, including her dog and cat, and left the apartment door open.  The defendants gave away the plaintiff's cat to a neighbor and initially refused to provide information as to the dog's whereabouts.  The defendants later told the plaintiff that the dog was taken to “Animal Care and Control,” but the plaintiff was unable to find the dog despite contacting multiple facilities.  In response to a demand by the plaintiff's counsel, the defendants advised that the dog had been taken to the Humane Society of New York, but when the plaintiff contacted the facility, it denied that her dog had been brought there.  Despite additional demands by the plaintiff as to the location of her dog, the defendants refused to provide any further information, and the plaintiff was unable to locate the dog.  The complaint alleged that the defendants deliberately made false statements to keep the plaintiff from discovering the whereabouts of her dog, despite the plaintiff's numerous diligent attempts to find it.

The defendants moved, pre-answer, to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), submitting, inter alia, the propriety lease to the apartment and the “House Rules” of Glen Oaks, both of which permitted entry into an apartment “in case of emergency,” and purported “bodycam footage” of the entry to the plaintiff's apartment.  The defendants asserted that a foul odor was emanating from the plaintiff's apartment, which constituted an emergency justifying their entry.  They also submitted veterinary records from May through July 2023 purportedly relating to the plaintiff's dog, which indicated that a dog was brought to a shelter on May 31, 2023, described to the shelter staff as an “abandon[ed]” dog with no owner, and that after spending nearly two months in the shelter, the dog was euthanized on July 24, 2023.

In opposition to the motion, the plaintiff did not contest whether the proffered evidence was documentary within the meaning of CPLR 3211(a)(1) and, instead, contended that the evidence failed to utterly refute the allegations in the complaint.  In an order entered February 25, 2025, the Supreme Court denied the defendants’ motion.  The defendants appeal.

Generally, on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is afforded a liberal construction, the allegations are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court determines whether the facts as alleged fit within any cognizable legal theory (see Connolly v Long Is. Power Auth., 30 NY3d 719, 728;  Leon v Martinez, 84 NY2d 83, 87– 88).  A motion to dismiss merely addresses the adequacy of the pleading and does not reach the substantive merits of the causes of action (see 25–86 41st St., LLC v Guzman, 234 AD3d 649, 650;  Oluwo v Sutton, 206 AD3d 750, 752).  Thus, evidentiary material submitted on a motion to dismiss for failure to state a cause of action is “not to be examined for the purpose of determining whether there is evidentiary support for the pleading” (Rovello v Orofino Realty Co., 40 NY2d 633, 635;  see Guggenheimer v Ginzburg, 43 NY2d 268, 275).  However, a court may freely consider such material to remedy any defects in the complaint (see Leon v Martinez, 84 NY2d at 88).  Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence submitted utterly refutes the factual allegations in the complaint, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314, 326;  Leon v Martinez, 84 NY2d at 88).

The essential elements of a cause of action sounding in trespass are the intentional entry onto the land of another without justification or permission (see Wlody v Birch Family Servs., Inc., 210 AD3d 1036, 1037;  Leavitt Enter., Inc. v Two Fulton Sq., LLC, 181 AD3d 662, 664).  Here, the complaint stated a viable cause of action alleging trespass inasmuch as it alleged that the defendants forcefully entered the plaintiff's apartment without her permission (see Meadow Lane Equities Corp. v Hill, 63 AD3d 699, 700;  see also Krakovski v Stavros Assoc., LLC, 245 AD3d 696, 698;  Orlitsky v 33 Greenwich Owners Corp., 236 AD3d 408, 410).  Assuming, without deciding, that the evidence submitted by the defendants in support of their motion was documentary, it failed to utterly refute the allegations in the complaint and conclusively establish that the entry into the plaintiff's apartment was justified as a matter of law (see Goshen v Mutual Life Ins. Co. of New York, 98 NY2d at 326).  Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging trespass.

The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct;  (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress;  (3) causation;  and (4) severe emotional distress (see Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 56).  The subject conduct must be “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” (id. [internal quotation marks omitted] ).  Accepting as true the allegations in the complaint and according the plaintiff the benefit of every possible favorable inference, the complaint, along with the evidentiary material submitted on the motion, alleged that while the plaintiff was out one morning, the defendants forcibly entered her apartment, removed her personal property, including her cat and dog, gave away the cat to a neighbor, repeatedly withheld information or lied to the plaintiff about the dog's whereabouts, and brought the dog to a shelter and falsely identified it as abandoned, which thwarted the plaintiff's efforts to locate the dog and resulted in the dog languishing in the shelter for nearly two months and eventually being euthanized.  Contrary to the defendants’ contention, the complaint sufficiently alleged a cause of action to recover damages for intentional infliction of emotional distress (see Georgiou v Sacred Patriarchal & Stravropegial Orthodox Monastery of St. Irene Chrysovalantou, 242 AD3d 950, 952;  Warner v Druckier, 266 2, 3).

The elements of a cause of action to recover damages for prima facie tort are (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful (see Freihofer v Hearst Corp., 65 NY2d 135, 142–143;  25–86 41st St., LLC v Guzman, 234 AD3d at 651).  Here, the general and conclusory allegations in the complaint failed to state a cause of action alleging prima facie tort.  The complaint failed to allege that disinterested malevolence was the sole motivation for the conduct and failed to allege any special damages (see 25–86 41st St., LLC v Guzman, 234 AD3d at 651), which are pecuniary in nature (see Liberman v Gelstein, 80 NY2d 429, 434–435) and must be alleged with sufficient particularity to identify actual losses (see Franklin D. Nastasi Trust v Bloomberg, L.P., 224 AD3d 804, 809;  Shahid v Slochowsky & Slochowsky, LLP, 208 AD3d 1381, 1383).  Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging prima facie tort.

BRATHWAITE NELSON, J.P., WOOTEN, LOVE and MCCORMACK, JJ., concur.