Wehringer v. Helmsley-Spear, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SANDLER
• Citation: Wehringer v. Helmsley-Spear, Inc., 457 N.Y.S.2d 78, 91 A.D.2d 585 (N.Y. App. Div. 1982)
• Decision Date: 23 December 1982
• Docket Number: HELMSLEY-SPEA,INC
• Parties: Cameron K. WEHRINGER, Plaintiff-Appellant-Respondent, v.etc. et al., Defendants-Respondents-Appellants.

Page 78

457 N.Y.S.2d 78

91 A.D.2d 585

Cameron K. WEHRINGER, Plaintiff-Appellant-Respondent, v. HELMSLEY-SPEAR, INC. etc. et al., Defendants-Respondents-Appellants.

Supreme Court, Appellate Division First Department.

Dec. 23, 1982.

Cameron K. Wehringer, pro se.

R.G. Rosenbaum, New York City, for defendants-respondents-appellants.

Before SANDLER, J.P., and CARRO, ASCH, MILONAS and KASSAL, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County entered June 9, 1982, unanimously modified, on the law, to the extent of granting defendants' motion for summary judgment dismissing the complaint, and otherwise affirmed, without costs or disbursements.

The action was brought to recover for alleged "harassment, anguish, suffering, both mentally and emotionally," sustained as a result of defendants having continued to bill plaintiff for use and occupancy of office premises at 25 West 43rd Street, New York City, after expiration of plaintiff's lease and after notification that the tenant had vacated the premises. Plaintiff, an attorney, had occupied rooms 904 and 905 under separate leases. At the time the lease to room 904 expired in December 1980, plaintiff relinquished possession, retaining space occupied by him in room 905. Nevertheless, after expiration of the term, allegedly through inadvertence, the landlord continued to charge plaintiff for electrical use with respect to room 904. This action to recover both compensatory and punitive damages, was brought upon allegations that defendants had acted wantonly and wilfully and were grossly negligent.

Both parties moved for multiple relief, including summary judgment pursuant to CPLR 3212, albeit upon different grounds. Defendants sought summary relief dismissing the complaint as patently insufficient. They relied upon the failure of plaintiff's bill of particulars, as an amplification of the pleading, to establish that a viable claim exists. Plaintiff cross-moved for multiple relief, including summary judgment for defendant's default in appearing for deposition, as had been previously directed. A prior order had imposed upon defendants $250 costs as sanctions for the expense incurred by reason of the default in appearance, which we do not disturb.

On a motion for summary judgment, we are empowered to search the record and, if warranted, to grant summary relief even in the absence of a cross-motion (see Jelinek v. City of New York, 25 A.D.2d 425, 266 N.Y.S.2d 766; Flaks, Zaslow v. Bank Computer, 66 A.D.2d 363, 413 N.Y.S.2d 1; Carroll v. New York Property Insurance Underwriting Association, 88 A.D.2d 527, 450 N.Y.S.2d 21). The power to render appropriate relief exists both at Special Term and on appeal (Davis v. Shelton, 33 A.D.2d 707, 304 N.Y.S.2d 722). Here, both parties sought summary disposition. Defendants, however, in support of their motion, did not conform to the requisite standard contained in CPLR 3212(b), having failed to submit an affidavit by a person with knowledge of the facts. The affirmation of counsel, clearly without requisite knowledge, was insufficient for that purpose and lacked probative value (Di Sabato v. Soffes, 9 A.D.2d 297, 193 N.Y.S.2d 184; Executive Securities Corp. v. Gray, 67 A.D.2d 860, 413 N.Y.S.2d 674; Philip A. Feinberg, Inc. v. Varig, 80 Misc.2d 305, 363 N.Y.S.2d 195, aff'd 47 A.D.2d 1005, 370 N.Y.S.2d 499).

Nevertheless, on review of the pleaded allegations of the complaint, amplified by the bill of particulars, we find the cause of action insufficient as a matter of law. Plaintiff concedes and the order of Special Term found that the complaint sought to recover for the "intentional infliction of mental distress." We agree, however, that the pleading does not state a cognizable claim for relief sounding in prima facie tort.

A recovery for prima facie tort, the Court of Appeals has observed, affords a remedy for "the infliction of intentional harm, resulting in damage, without excuse or justification, by an act or series of acts which would otherwise be lawful" (ATI, Inc. v. Ruder & Finn, 42 N.Y.2d 454, 458, 398 N.Y.S.2d 864, 368 N.E.2d 1230). The principle was announced by Mr. Justice Holmes in Aikens v. Wisconsin, 195 U.S 194, 25 S.Ct. 3, 49 L.Ed. 154 and has been recognized in this State (see Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 70 N.E.2d 401; Opera on Tour v. Weber, 285 N.Y. 348, 34 N.E.2d 349). One of the essential elements of the cause of action is an allegation that plaintiff suffered specific and measurable loss. Accordingly, it has been held that an action sounding in prima facie tort may not be...