Opinion
INDEX NO. 101654/2018
06-24-2019
NING YE, Plaintiff, v. WUYI PAN, FAMILY JUSTICE CENTER, Defendants.
NYSCEF DOC. NO. 47 PRESENT: HON. BARBARA JAFFE Justice MOTION DATE __________ MOTION SEQ. NO. 001, 002
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 001) 4-12, 23-25, 37-40, 42-45 were read on this motion to dismiss. The following e-filed documents, listed by NYSCEF document number (Motion 002) 3, 13- 22, 26, 32-36 were read on this motion for default judgment.
By notice of motion, filed on January 23, 2019, defendant Pan moves pursuant to CPLR 2013, 3016, and 3211(a)(4), (5) and (7) for an order dismissing plaintiff's complaint against her (mot. seq. one). Plaintiff opposes.
By notice of motion filed on January 23, 2019, plaintiff moves for an order granting him a default judgment against Pan (mot. seq. two). Pan opposes and, by notice of cross motion, seeks an order granting her an extension of time to serve her motion to dismiss to January 23, 2019, and deeming it timely served nunc pro tunc. Plaintiff opposes the cross motion. On the night of April 9, 2019, plaintiff efiled materials supplementing his motion.
At oral argument on the motions held on April 10, 2019, plaintiff's late submissions were rejected. (NYSCEF 42-45).
The motions are consolidated for decision.
I. BACKGROUND
On October 31, 2018, before commencing the instant action, plaintiff commenced an action against Pan in this court (index number 350050/18). (NYSCEF 10). In that prior action, plaintiff sought an annulment of the parties' marriage, setting forth many of the same allegations as in the complaint in this action, and interposing claims for an annulment, battery and assault, defamation, conversion, fraud, intentional infliction of emotional distress, breach of marital contract, unjust enrichment, and civil conspiracy. (Id.).
By summons and complaint filed on November 13, 2018, plaintiff sues Pan for various claims arising from their relationship and marriage, including defamation, battery and assault, fraud, fraudulent breach of contract, trover and conversion, unjust enrichment, and intentional infliction of emotional distress.
By stipulation dated December 20, 2018, Pan's time to answer was extended to January 21, 2019. (NYSCEF 16). However, the court was closed for a court holiday on January 21, 2019. (NYSCEF 17).
II. MOTION FOR DEFAULT JUDGMENT
Pan explains her one-day delay in filing her motion to dismiss as resulting from counsel's attempt to e-file the motion on January 22, which would have been timely given the court holiday on January 21. As the case had not yet been registered for efiling, the motion was rejected. Pan filed the motion the next day. (NYSCEF 20, 21).
As New York's public policy favors the resolution of cases on their merits rather than on default (Manne v Berkowits School of Electrolysis, Inc., 165 AD3d 531 [1st Dept 2018] [court providently exercised discretion in denying default judgment motion, given reasonable excuse for delay and strong public policy in favor of resolution of cases on their merits, and properly accepted defendant's answer, deeming it timely filed nunc pro tunc]), and given the brevity of the delay here, plaintiff's motion for a default judgment against Pan is denied, and Pan's cross motion is granted to the extent that her motion to dismiss is deemed timely served, nunc pro tunc (see e.g., Cirillo v Macy's, Inc., 61 AD3d 538 [1st Dept 2009] [defendants' two-week delay in serving answer and seeking to compel plaintiff to accept answer was brief and caused no prejudice, and thus default judgment motion properly denied]).
III. MOTION TO DISMISS
A. Prior action pending
Pursuant to CPLR 3211(a)(4), a cause of action may be dismissed on the ground that another action pends between the same parties for the same cause of action. Here, the two actions are between the same parties and are premised on the same facts and claims as here. Additional causes of action are set forth in the earlier action. Dismissal is warranted (see Pryce v Pryce, 160 AD3d 965 [2d Dept 2018] [as prior action arose from same subject matter and alleged wrongs and involved same parties, court properly dismissed later action]; see also Chen v Fischer, 6 NY3d 94 [2015] [observing that interspousal tort and personal injury claims could have been litigated in matrimonial action]), were it not for court records which reflect that the earlier action was settled by stipulation in March 2019 and that presently, a prior action no longer pends. Absent any offer of proof that any or all of plaintiff's claims here were resolved in that settlement, this case may not be dismissed due to the other action.
B. Defamation
Plaintiff's causes of action for defamation based on alleged statements made in 2017 are time-barred. (CPLR 215[3] [action for damages based on defamation must be brought within one year]; see Biro v Conde Nast, 171 AD3d 463 [1st Dept 2019] [dismissing defamation claim filed more than one year after date of first allegedly defamatory publication]).
And, as the sole allegedly defamatory statement that is not time-barred was made during an of-record family court proceeding commenced by Pan against plaintiff, it is privileged, as are the family court filings pertaining to that proceeding. (Carossia v City of New York, 39 AD3d 429 [1st Dept 2007] [defamation claim properly dismissed as statements at issue made in family court petition and thus entitled to absolute judicial immunity]; Goldfeder v Weiss, 250 AD2d 731 [2d Dept 1998], lv denied 92 NY2d 808 [1998][absolute privilege applies to statements made in open court or during judicial proceeding, if pertinent to litigation]).
C. Assault and battery
Plaintiff's complaint does not reflect that any alleged acts of assault and battery were committed within one year of the complaint's filing. Thus, they are time-barred. (CPLR 215 [one-year statute of limitations for assault]). The one-year extension set forth in CPLR 215(8) is inapplicable as Pan was not the person criminally prosecuted for acts that form the basis of plaintiff's claim (Villanueva v Comparetto, 180 AD2d 627 [2d Dept 1992] [extension inapplicable as against person who was not party to criminal proceedings]). Nor were the acts allegedly committed by Pan in this case the subject of the criminal action against plaintiff.
D. Fraud and fraudulent breach of contract
In his motion papers, plaintiff couches his cause of action for fraud as based on Pan's alleged theft of his money and willful misrepresentations to law enforcement that he had harmed her (NYSCEF 23), which allegations do not state any of the elements of a cause of action for fraud. The alleged misrepresentations made to law enforcement personnel do not support a fraud claim absent a claim that plaintiff relied on such misrepresentations to his detriment. The alleged facts reflect that only the officers may have relied on the alleged misrepresentations.
To the extent that plaintiff alleges that Pan fraudulently concealed certain facts, he does not allege that Pan had a duty to disclose that those facts, which is a necessary element of the cause of action for fraudulent concealment. (Dembeck v 220 Cent. Park S., LLC, 33 AD3d 491 [1st Dept 2006]). And there is no legally cognizable claim for a fraudulent breach of a contract. (Bamira v Greenberg, 256 AD2d 237 [1st Dept 1998]).
E. Conversion
Plaintiff sufficiently alleges that Pan took money and diverted it from him without authorization.
F. Unjust enrichment
Plaintiff's unjust enrichment claim is insufficiently pleaded. (See Swartz v Swartz, 145 AD3d 818 [2d Dept 2016] [allegation that defendant unjustly enriched by keeping plaintiff's money and receiving plaintiff's funds, assets, and property constituted bare legal conclusions and thus, claim for unjust enrichment dismissed]).
G. Intentional infliction of emotional distress
There is no valid claim for intentional infliction of emotional distress between spouses. (Chen v Wang, 164 AD3d 1299 [2d Dept 2018]). Moreover, none of the acts underlying this claim was committed within one year of plaintiff's commencement of the action, and it is thus time-barred. (CPLR 215[3]; Silver v Silver, 162 AD3d 937 [2d Dept 2018]).
IV. CONCLUSION
Accordingly, it is hereby
ORDERED, that defendant Pan's motion to dismiss (mot. seq. one) is granted to the extent of dismissing all of plaintiff's causes of action against her except for conversion; it is further
ORDERED, that plaintiff's motion for a default judgment against defendant Pan (mot. seq. two) is denied; it is further
ORDERED, that Pan's cross motion for an order deeming her motion to dismiss timely served, nunc pro tunc, is granted; it is further
ORDERED, that Pan serve and file an answer to the complaint, addressed to the only remaining claim therein, within 30 days of the date of this order; and it is further
ORDERED, that all parties appear for a preliminary conference on August 24, 2019, at 2:15 pm, at 60 Centre Street, Room 341, New York, New York. 6/24/2019
DATE
/s/ _________
BARBARA JAFFE, J.S.C.