Opinion
5871
February 7, 2002.
Order, Supreme Court, New York County (Edward Lehner, J.), entered August 30, 2000, which granted defendant cooperative board's cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
NORMAN I. KLEIN, for plaintiffs-appellants.
JOSEPH G. COLBERT, for defendant-respondent.
Before: Nardelli, J.P., Mazzarelli, Saxe, Sullivan, Ellerin, JJ.
This is an action by shareholders against their residential cooperative corporation, seeking damages for malicious prosecution, abuse of process, intentional infliction of emotional distress, prima facie tort, breach of fiduciary obligation and tortious interference with prospective business opportunity, based on the board's prosecution of an unfounded ejectment action against them and the board's rejection of one of plaintiffs' joint application with another shareholder to purchase another unit in the building. The motion court properly dismissed as untimely the causes of action for malicious prosecution, abuse of process and intentional infliction of emotional distress, since the order dismissing the ejectment action was entered on February 7, 1996, and plaintiffs' summons with notice was filed over one year later, on February 26, 1997 (see, Spinale v. Guest, 270 A.D.2d 39; Beninati v. Nicotra, 239 A.D.2d 242). The cause of action for prima facie tort was properly dismissed in light of plaintiffs' inability to demonstrate that they had sustained special damages (Leather Dev. Corp. v. Dun Bradstreet, 15 A.D.2d 761, affd 12 N.Y.2d 909) or that defendant's sole motive was disinterested malevolence (see, e.g., Bainton v. Baran, 287 A.D.2d 317, 317 731 N.Y.S.2d 161, 162). The cause of action for breach of fiduciary duty was clearly asserted against the individual defendants only, and was properly dismissed on that ground.
The cause of action for tortious interference was also properly dismissed, since the board's action was shielded by the business judgment rule based upon its reliance on the advice of counsel (see, Allen v. Murray House Owners Corp., 174 A.D.2d 400, 404-405, lv denied 78 N.Y.2d 860). Plaintiffs' claimed need for discovery on this issue does not warrant denial of defendant's motion, especially since it is undisputed that, in response to the board's offer, plaintiffs never provided the names of board members they wished to depose.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.