Ferreyr v. Soros

• Court: New York Supreme Court
• Writing for the Court: DEBRA A. JAMES
• Citation: Ferreyr v. Soros, 38 Misc.3d 1218, 967 N.Y.S.2d 866, 2013 N.Y. Slip Op. 50129 (N.Y. Sup. Ct. 2013)
• Decision Date: 22 January 2013
• Docket Number: No. 109256/11.,109256/11.
• Parties: Adriana FERREYR, Plaintiff, v. George SOROS and MASG LLC, Defendants.

38 Misc.3d 1218

967 N.Y.S.2d 866

2013 N.Y. Slip Op. 50129

Adriana FERREYR, Plaintiff,

v.George SOROS and MASG LLC, Defendants.

No. 109256/11.

Supreme Court, New York County, New York.

Jan. 22, 2013.

Zachary A. Kozak, Esq., New York City, for plaintiff.

William D. Zabel, Esq., Schulte Roth & Zabel, LLP, New York City, for defendant.

DEBRA A. JAMES, J.

Plaintiff's complaint in this action alleges, inter alia, that on two separate occasions defendant promised to purchase an apartment for her and on both occasions defendant breached that promise. Defendants move to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.

Plaintiff's complaint alleges the following facts. Plaintiff and the individual defendant began a relationship during 2006, and by 2007 were “involved in a serious and meaningful relationship and ... considered a couple' both within and outside United States”. In December 2009 plaintiff, following a search, found an apartment she wished to purchase in New York County in a building two blocks away from defendant's residence. Plaintiff states that around this time she mentioned to the defendant that she was interested in purchasing the apartment (“the First Apartment”) but was concerned about the asking price. Plaintiff alleges that in January 2010, defendant promised that he would purchase the First Apartment on her behalf and that she did not need to worry about the cost. Defendant also allegedly stated that plaintiff should also take all necessary steps to move forward with the purchase and that the First Apartment would be purchased in the name of co-defendant MASG, LLC so that he would not incur gift tax liability in connection with the transaction.

Plaintiff alleges that defendant on numerous occasions reiterated his intention to purchase the First Apartment for her and that ultimately a contract to purchase the First Apartment was executed with MASG as the signatory buyer. The transaction was allegedly closed on March 2, 2010, but possession was never conveyed to the plaintiff. Between March and August of 2010 the parties' relationship ebbed and flowed leading to an apparent reconciliation by the beginning of August 2010.

However, plaintiff states that on or about August 10, 2010, at defendant's apartment, defendant said that he had given the First Apartment MASG had purchased to another woman whereupon an argument ensued. Plaintiff alleges that during the course of the argument defendant physically assaulted her. Plaintiff states that the police were called and appends to her complaint a copy of a Domestic Incident Report dated August 11, 2010, completed by a police officer and including a signed, handwritten statement by the plaintiff. Plaintiff contends that she suffered physical injuries requiring treatment as well as emotional distress that caused her to be unable to resume her normal daily activities.

The complaint continues that in November 2010 the parties had a further reconciliation and that the defendant told plaintiff on more than one occasion to look again for an apartment that defendant would purchase for her. Plaintiff states that she once again engaged a broker and after a few months a suitable apartment in the same building as the First Apartment (“the Second Apartment”) had been found and an offer for it was negotiated. Plaintiff states that when she presented the status of the negotiated offer to defendant in March 2011, the defendant stated he would not purchase the Second Apartment nor any apartment for plaintiff. Further discussions between the parties during this period apparently yielded no rapprochement.

Subsequently, plaintiff apparently decided to attempt to lease another apartment (“the Third Apartment”) in the same building as the First and Second Apartments. Plaintiff claims that defendant used various forms of intimidation to discourage plaintiff from leasing the Third Apartment. Plaintiff moved into another apartment in the building in May 2011 as a guest of the apartment owner pending board approval of her lease of the Third Apartment. Plaintiff alleges that due to demands made by defendant upon the building's management she was subsequently barred from entering the building.

Plaintiff's complaint sets forth six causes of action for damages as a result of the foregoing alleged acts of defendant. The first cause of action is for intentional infliction of emotional distress. The second cause of action is for negligent infliction of emotional distress. The third cause of action is for prima facie tort. The fourth cause of action asserts a claim of promissory estoppel. The fifth cause of action is for the intentional torts of assault and battery. Finally, the sixth cause of action asserts a claim for fraud.

Defendants move pursuant to CPLR 3211(a)(7) to dismiss the entirety of plaintiff's complaint on the grounds that the facts alleged are non-actionable as a matter of law.

The court's analysis begins with the well-worn observation that “[i]t is too basic a proposition to require extensive citation that on a motion to dismiss a complaint, made pursuant to CPLR 3211 (subd [a], par 7), for failure to state a cause of action every fact alleged must be assumed to be true and the complaint liberally construed in plaintiff's favor.” European American Bank and Trust Co. v. Strauhs & Kaye 102 A.D.2d 776, 777, 477 N.Y.S.2d 146 (1st Dept 1984) (citation and internal quotation omitted); see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 (2007) (affidavits may be considered only to remedy pleading defects and not to offer evidentiary support for properly pleaded claims). Therefore the court's analysis is limited to determining the sufficiency of the alleged facts contained in the complaint and the attachments thereto with respect to the causes of action asserted therein and assuming, only for this analysis, that such facts as alleged are true.

Plaintiff's cause of action for intentional infliction of emotional distress asserts defendant's liability based upon defendant's alleged intentional and reckless actions that were intended to cause such distress and harm to plaintiff. The Court of Appeals has stated that

The tort has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. The first element—outrageous conduct—serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff's claim of severe emotional distress is genuine. In practice, courts have tended to focus on the outrageousness element, the one most susceptible to determination as a matter of law.

* * *

Consequently, the requirements of the rule are rigorous, and difficult to satisfy. Indeed, of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous. Liability has been found only where the conduct has been 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.

Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121 –122, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993) (citations and internal quotations omitted).

Plaintiff's complaint adequately alleges that she suffered severe emotional distress because of the manner in which defendant allegedly attempted to restrain her from living in the building. The issue on this motion is whether, as a matter of law, the conduct alleged by plaintiff is sufficient to evince an intent by defendant to inflict severe emotional distress upon plaintiff by means that are extreme and outrageous.

Defendant argues that plaintiff's claim cannot lie asserting that the Appellate Division, Second Department has held that where there is a “relationship as lovers living together” such a cause of action does not lie. Baron v. Jeffer, 98 A.D.2d 810, 811, 469 N.Y.S.2d 815 (2d Dept 1983); Artache v. Goldin, 133 A.D.2d 596, 600, 519 N.Y.S.2d 702 (2d Dept 1987). In Baron, the Court considering plaintiff's claim for intentional infliction of emotional distress stated “we now hold that it would be contrary to public policy to recognize the existence of this type of tort in the context of disputes, as here, arising out of the differences which occur between persons who, although not married, have been living together as husband and wife for an extended period of time (here, over two years).” Baron, 98 A.D.2d at 810, 469 N.Y.S.2d 815. The Court reached a similar conclusion in Artache where the plaintiff and defendant lived together under an oral partnership agreement under which they agreed to hold themselves out as husband and wife, and did so for over fourteen years, even though they were unmarried. Artache, 133 A.D.2d at 597, 519 N.Y.S.2d 702.

The decisions in Baron and Artache were based upon the Court of Appeals holding in Weicker v. Weicker (22 N.Y.2d 8, 11 [1968] ) where it was held that “strong policy considerations militate against judicially applying these recent developments in this area of the law to the factual context of a dispute arising out of matrimonial differences.” In reaching its decision in Weicker, the Court cited the case of Halio v. Lurie, 15 A.D.2d 62, 66, 222 N.Y.S.2d 759 (2d Dept 1961). In Halio, the plaintiff Halio and the defendant Lurie had been living together for two years and were contemplating marriage. Id. at 63, 222 N.Y.S.2d 759. Lurie married another woman without Halio's knowledge and after Halio discovered this fact Lurie composed and sent to Halio a communication that taunted her with her unsuccessful efforts to marry him, intimated that she had made a false claim that he was under an obligation to...