Russo v. Iacono
| Decision Date | 07 January 1980 |
| Citation | 423 N.Y.S.2d 253,73 A.D.2d 913 |
| Parties | John RUSSO, Appellant, v. Anna IACONO, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Van B. Kruchten, South Farmingdale, for appellant.
Robert W. Farrell, Mineola, for respondent.
Before HOPKINS, J. P., and LAZER, MARGETT and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
In a defamation action, the plaintiff appeals from an order of the Supreme Court, Suffolk County, dated March 15, 1979, which denied his motion to dismiss defendant's amended counterclaim.
Order modified, on the law, by dismissing the third pleaded cause of action in the amended counterclaim. As so modified, order affirmed, with $50 costs and disbursements to defendant.
Plaintiff contends that the counterclaim dismissed twice previously for failure to state a cause of action still does not make out causes of action. Plaintiff also contends that even assuming Arguendo that an intentional tort is made out, it is barred by the Statute of Limitations, to wit, it is not protected by subdivision (e) of section 203 of the CPLR because dismissal was predicated on the failure of the original pleading to "give notice of the transactions * * * to be proved pursuant to the amended pleading".
We disagree and find that the first two causes of action in the amended counterclaim should stand. Defendant's allegations that the plaintiff pointed a gun at her, shouted "I got to kill you", and that she became severely frightened, spell out an action for assault. An action for the intentional infliction of emotional distress is pleaded by her allegations that plaintiff on three separate occasions shouted vile, objectionable and obscene language at her. However, we do not agree with Special Term's conclusion that a cause of action for the negligent infliction of emotional distress was made out. No allegations of negligence appear in the pleadings. Furthermore the third cause of action alleged in the amended counterclaim must be dismissed because there is no independent cause of action for punitive damages.
The statute that protects the defendant's causes of action from dismissal because of the Statute of Limitations is subdivision (1) of section 215 of the CPLR. Inasmuch as the causes of action in the amended counterclaim were not barred since they were not barred at the time the claims asserted in the complaint were interposed (CPLR 203, subd. (c)), their dismissal upon grounds other than a voluntary discontinuance, the neglect...
To continue reading
Request your trial
-
Mahoney v. Mayowski
... ... Daluise v Sottile, 40 A.D.3d 801, 803, 837 N.Y.S.2d 175 ... [2d Dept 2007], quoting Russo v Iacono, 73 A.D.2d ... 913, 913, 423 N.Y.S.2d 253 [2d Dept 1980]) ... Here ... Weigelt established, prima ... ...
-
Borrerro v. Haks Grp., Inc., 2017–04616
...of negligence appear in the pleadings’ " ( Daluise v. Sottile , 40 A.D.3d 801, 803, 837 N.Y.S.2d 175, quoting Russo v. Iacono , 73 A.D.2d 913, 423 N.Y.S.2d 253 ; see Santana v. Leith , 117 A.D.3d 711, 712, 985 N.Y.S.2d 147 ). We further agree with the Supreme Court's determination to grant ......
-
McVawcd-Doe v. Columbus Ave. Elementary Sch.
... ... the pleadings'" (Daluise v. Sottile, 40 A.D.3d ... 801, 803, 837 N.Y.S.2d 175, quoting Russo v. Iacono, 73 ... A.D.2d 913, 913, 423 N.Y.S.2d 253) ... Santana v. Leith, 117 A.D.3d 711, 712 (2d Dept ... 2014) ... ...
-
In re Pennsylvania Footwear Corp.
...Misc.2d 417, 426 N.Y.S.2d 667, 672-73 (Nassau Co. Sup.Ct.1980), modified, 85 A.D.2d 709, 445 N.Y.S.2d 830 (1981); Russo v. Iacono, 73 A.D.2d 913, 423 N.Y.S.2d 253, 254 (1980); Cahoes Housing Authority v. Ippolito-Lutz, Inc., 65 A.D.2d 666, 409 N.Y.S.2d 811, 812 (1978), aff'd, 49 N.Y.2d 961,......