On June 4, 2020, Justice Borrok of the New York County Commercial Division issued a decision in LSG 105 W. 28th LLC v. Sinclair, 2020 NY Slip Op. 31764(U), holding that defendants could not be liable for prima facie tort when they were motivated by more than disinterested malevolence, explaining:
The fifth cause of action for prima facie tort alleges that Mr. Sinclair and Ms. Chapman intentionally inflicted harm on the Plaintiff by making false 311 calls or other unfounded complaints to the DOB. The elements of a claim for prima facie tort are (1) the intentional infliction of harm, (2) without any excuse or justification, (3) resulting in special damages, (4) by an act or series of acts which are otherwise legal. A claim for prima facie tort will be dismissed where the pleadings fail to allege that the sole motivation for the damaging act is disinterested malevolence – i.e. malicious intent to injure the plaintiff, without any other motive – and instead, sets forth more than one motive for the purported wrongdoing. By way of example, in Iken v Bohemian Brethren Presbyterian Church, the First Department affirmed the dismissal of the prima facie tort claim because the plaintiff in that case did not plead that “disinterested malevolence” was defendant’s sole motive for alleged misconduct, but instead pleaded dual motives for the defendant’s actions: (i) revenge and (ii) forcing the plaintiff out in order to re-let the premises at a higher rental rate. This was insufficient to make out a claim for prima facie tort. In other words, a claim for prima facie tort cannot be sustained where the plaintiff is alleged to be motivated by profit as well as malicious intent.
Here, the Complaint fails to plead that disinterested malevolence was the sole motive for Mr. Sinclair and Ms. Chapman’s alleged wrongful actions because the Complaint asserts dual motives for the NWRE Defendants’ alleged wrongdoing: (i) malicious intent to prevent construction of the Hotel, and (ii) extortion of additional money from the Plaintiffs after the hotel became operational. As the Plaintiff fails to plead that the NWRE Defendants’ only motive for their alleged wrongdoing was malicious intent, the branch of the NWRE Defendants’ motion to dismiss the fifth cause of action for prima facie tort is granted.
(Internal quotations and citations omitted).
Prima facie tort is a claim of last resort that rarely succeeds. But, the circumstances where it applies, while rare, do exist. Contact Schlam Stone & Dolan partner John Lundin at firstname.lastname@example.org if you or a client have questions regarding what claims might apply when someone has wronged you or your business.
Click here to subscribe to this or another of Schlam Stone & Dolan’s blogs.