Opinion
2007-1277 N C.
Decided July 10, 2008.
Appeal from an order of the District Court of Nassau County, First District (Gary Franklin Knobel, J.), entered June 18, 2007. The order denied plaintiff's motion to restore the action to the calendar and granted defendants' cross motion for summary judgment dismissing the complaint.
Order modified by providing that defendants' cross motion for summary judgment dismissing the complaint is granted only with respect to plaintiff's second cause of action and is otherwise denied, and by further providing that plaintiff's motion to restore the action to the calendar is granted; as so modified, affirmed without costs.
PRESENT: RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ.
In this action commenced in the Supreme Court, Nassau County, and transferred to the District Court of Nassau County pursuant to CPLR 325 (d), plaintiff seeks, as a first cause of action, to recover damages in the sum of $75,000, alleging that defendants caused damage to the premises which they rented from plaintiff. In addition, plaintiff asserts a separate cause of action for prima facie tort, seeking punitive damages in the sum of $1 million. Pursuant to a stipulation between the parties, the action was removed from the District Court's calendar, with plaintiff having the right to restore the action thereto prior to July 10, 2006, and defendants having the right to cross-move for summary judgment.
After a settlement could not be reached, plaintiff timely moved to restore the action to the calendar and defendants cross-moved for summary judgment dismissing the complaint. The court below granted defendants' cross motion for summary judgment dismissing the complaint and denied plaintiff's motion to restore the action to the calendar.
Defendants' cross motion for summary judgment should have been denied with respect to plaintiff's first cause of action since defendants failed to meet their initial burden of establishing their entitlement to judgment as a matter of law with respect thereto ( see Zuckerman v City of New York, 49 NY2d 557, 562). In the first cause of action, plaintiff alleged that the apartment rented by defendants and the premises located underneath their apartment sustained damage and deterioration as a result of defendants' actions. Defendants' moving papers merely raised an issue of fact as to whether they contributed to the alleged damage to the premises. Thus, defendants failed to demonstrate the absence of a triable issue of fact ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324).
Dismissal of plaintiff's second cause of action for prima facie tort was appropriate since plaintiff failed to allege that defendants were motivated solely by "disinterested malevolence" ( Burns Jackson Miller Summit Spitzer v Lindner, 59 NY2d 314, 333).
Accordingly, the order is modified by providing that defendants' cross motion for summary judgment dismissing the complaint is granted only with respect to plaintiff's second cause of action and by granting plaintiff's motion to restore the action to the trial calendar.
Rudolph, P.J., McCabe and Scheinkman, JJ., concur.