Ruza v. Ruza

• Court: New York Supreme Court — Appellate Division
• Citation: Ruza v. Ruza, 146 N.Y.S.2d 808, 1 A.D.2d 669 (N.Y. App. Div. 1955)
• Decision Date: 23 December 1955

Page 808

146 N.Y.S.2d 808

286 A.D. 767, 1 A.D.2d 669

Sophie K. RUZA, Plaintiff-Respondent v Stanley W. RUZA, Martin B. Ruza and Elegant Leather Goods Inc., Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Dec. 20, and 23, 1955.

H. Jordan Lee, New York City, of counsel (Nathan Weber, New York City, on the brief; H. Jordan Lee, New York City, attorney), for defendants-appellants.

Lester Samuels, New York City, of counsel (Milton C. Weisman and Harry Snetkin, New York City, on the brief; Weisman, Celler, Allan, Spett & Sheinberg, New York City, attorneys), for plaintiff-respondent.

Before PECK, P. J., and BREITEL, BASTOW, and COX, JJ.

BREITEL, Justice.

Defendants moved to dismiss the complaint for legal insufficiency. Special Term denied the motion.

The complaint is substantially a running narrative. It relates a scheme, described as a conspiracy, to destroy the marital and financial status of plaintiff. The scheme is alleged to have been carried forward by plaintiff's stepsons and the corporation they and plaintiff's husband dominated. The husband and father is not a party to the action. This scheme is alleged to have been accomplished by a long series of acts. They range from the giving of advice, the secreting of assets, the willful contempt of court orders and injunctions, and the baseless institution of a criminal proceeding, to the imposition on plaintiff of the necessity for retaining counsel and bringing or defending a variety of litigations.

The allegations of the complaint fail to state a valid cause of action. To the extent that there is contained in the complaint, perhaps inadvertently, a cause of action for alienation of affections, such an action is barred by the provisions of Article 2-A of the Civil Practice Act.

There is suggestion in the complaint of the existence of a cause or causes of action based upon, but not limited to, malicious prosecution, fraudulent conveyances, and secretion of assets or putting them beyond the reach of plaintiff. This broad-gauged, scattered format is justified, plaintiff contends, because she is pleading a 'prima facie tort'. But a bad complaint is not made good by the blanket assertion that it relies on the doctrine of 'prima facie tort'. Where specific acts, recognized as tortious in the law, are asserted, the remedies lie only in the classic categories of tort. The mere fact that a series of tortious acts is part of a plan or scheme does not change the character of the liability or remedy, for traditional relief may, nevertheless, be available. There is, then, no occasion for invoking the doctrine of prima facie tort. This analysis was made patently clear in the leading case on prima facie tort, Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 84, 70 N.E.2d 401, 403. This analysis was recently restated in this court. Brandt v. Winchell, 283 App.Div. 338, 127 N.Y.S.2d 865. At that time this court stated:

'If the plaintiff only intends to rely on the 'prima facie tort' theory in this case, he should confine his pleading to allegations of fact and averments of special damage limited to this tort and eliminate any statement of wrongdoing and injury appropriate to one or more of the traditional torts.

'If, on the other hand, the plaintiff intends to add a claim for damages based on any of the traditional torts, each such tort should be pleaded as a separate cause of action and the resultant damage or injury separately stated. It is only by a complaint of this nature that the defendant may be able to test the sufficiency of the pleading or move with respect to the complaint on the basis of the statute of limitations. The complaint should only allege the ultimate facts constituting each separate wrong, and not...