Hersh v. Cohen
| Decision Date | 23 September 2015 |
| Docket Number | 2013-01102, Index No. 6170/09. |
| Citation | 131 A.D.3d 1117,16 N.Y.S.3d 606,2015 N.Y. Slip Op. 06888 |
| Parties | Miriam HERSH, et al., respondents-appellants, v. Elizabeth Rebecca COHEN, et al., defendants, Zvi Gluck, appellant-respondent. |
| Court | New York Supreme Court — Appellate Division |
Solomon E. Antar, P.C., Brooklyn, N.Y. (Leopold Gross of counsel), for appellant-respondent.
Miriam Hersh, Brooklyn, N.Y., and Michael Hersh, Brooklyn, N.Y., respondents-appellants pro se (one brief filed).
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.
In an action, inter alia, to recover damages for prima facie tort, the defendant Zvi Gluck appeals, as limited by his brief and a letter dated April 29, 2015, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated March 2, 2011, as denied that branch of his motion which was pursuant to CPLR 3211(a)(7) to dismiss the sixth cause of action, which alleged prima facie tort, and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as granted those branches of his motion which were pursuant to CPLR 3211(a)(7) to dismiss the first and third causes of action, which alleged tortious interference with contract and tortious interference with prospective business relations, respectively.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant Zvi Gluck which was to dismiss the first cause of action, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiffs.
On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint must be liberally construed in the light most favorable to the plaintiff and all allegations must be accepted as true (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). “Initially, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; see J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d 652, 654, 990 N.Y.S.2d 223 ; Pacific Carlton Dev. Corp. v. 752 Pac. LLC, 62 A.D.3d 677, 679, 878 N.Y.S.2d 421 ).
In the instant amended complaint, the plaintiffs alleged, inter alia, that they have twin boys who were “born with disabilities requiring special needs” and that the defendants reported to numerous parties that the boys were being abused by the plaintiffs, causing criminal and social services investigations to be conducted. They further alleged that, in October 2007, the plaintiff Michael Hersh accepted a position as CEO of Chevra Hatzalah (hereinafter Hatzalah), a not-for-profit Orthodox Jewish volunteer ambulance corps, and that the written employment contract provided that he could only be terminated for cause. The amended complaint also alleged that the defendant Zvi Gluck, acting in concert with certain codefendants, “set up many websites” featuring Michael Hersh's photograph and implying that he was a child abuser, and issuing a “call to action,” to exert pressure on the plaintiffs, urging hundreds of teenagers across the country, via social media sites, to picket and protest in front of the plaintiffs' home, to call the plaintiffs at all hours, and to take any steps necessary to “convince” Michael Hersh to remove one of his twin sons from a specialized school to which he was sent. The amended complaint alleged that Gluck and certain codefendants “attempt[ed] to organize a large public protest on the Jewish Sabbath in front of the prominent synagogue” to which the plaintiffs belonged and that Gluck and certain codefendants told the plaintiffs' neighbors that the plaintiffs were child abusers and encouraged the neighbors to confront the plaintiffs. The amended complaint also alleged that, at the request of Gluck and certain codefendants, individuals approached many of Michael Hersh's business associates, investors, and potential investors in Israel and the United States to harass them regarding their continued relationship with the plaintiffs.
Regarding Michael Hersh's employment contract with Hatzalah, the amended complaint alleged, inter...
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