Probst v. Cacoulidis
| Decision Date | 03 June 2002 |
| Citation | 295 A.D.2d 331,743 N.Y.S.2d 509 |
| Parties | JEROLD PROBST, Appellant,<BR>v.<BR>JOHN CACOULIDIS et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to recover for damage to his personal property allegedly caused by the defendants when, pursuant to an agreement, they moved his office furniture and contents to a new location. The plaintiff alleged that the defendants breached a lease and other subsequent agreements between the parties and unlawfully evicted him, and in the process, damaged his personal property and destroyed religious objects he had affixed to the walls.
The plaintiff later moved, inter alia, for leave to serve and file an amended complaint adding three causes of action sounding in tort to the contract claims originally pleaded. The Supreme Court determined that the tort claims, designated the fifth, sixth, and seventh causes of action in the proposed amended complaint, were insufficient as a matter of law.
Although leave to amend the pleadings is to be freely given absent prejudice or surprise resulting from the delay (see CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959; Fahey v County of Ontario, 44 NY2d 934, 935), a cause of action totally devoid of merit or palpably insufficient as a matter of law will not be allowed (Leszczynski v Kelly & McGlynn, 281 AD2d 519; Fandy Corp. v Lung-Fong Chen, 265 AD2d 450; Romano v Damiano, 242 AD2d 267). Here the Supreme Court properly examined the merits of the proposed fifth, sixth, and seventh causes of action in the amended pleading and properly determined that those claims were palpably insufficient. It is well established that a breach of contract is not to be considered a tort "unless a legal duty independent of the contract itself has been violated" (Clark-Fitzpatrick, Inc. v Long Is. R.R., 70 NY2d 382, 389). The tort claims in the plaintiff's proposed amended complaint do not identify a duty of care owed by the defendants distinct from their contractual obligations, nor do they allege that the defendants engaged in tortious conduct separate and apart from the alleged failure to properly execute their agreement to move the plaintiff's personalty and relocate his office (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 316).
Even in the event of the existence of a legal duty distinct from the contracts, the tort claims of negligent and/or intentional infliction of emotional distress sought to be interposed in the fifth through seventh causes of action of the amended complaint lack merit because they seek to recover damages for emotional distress caused by alleged...
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