Judah v. Behm

Judah v Behm 2025 NY Slip Op 30045(U) January 6, 2025 Supreme Court, New York County Docket Number: Index No. 155936/2024 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

INDEX NO. 155936/2024 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/07/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ------------------------------------------------------------·-----------X INDEX NO. 155936/2024 ALLEGRA JUDAH MOTION DATE 08/07/2024 Plaintiff, MOTION SEQ. NO. ----=-00=2=---- - V-

ANDREW BEHM, DECISION + ORDER ON MOTION Defendant. --------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42,43, 44,45,46,47,48,49, 50, 51, 52, 53, 54, 55, 56, 57,58, 59,60,61, 62 were read on this motion to/for DISMISSAL

Upon the foregoing documents, and a final submission date of August 23, 2024, Defendant

Andrew Behm's ("Defendant") motion seeking dismissal of Plaintiff Allegra Judah's ("Plaintiff')

Verified Complaint pursuant to CPLR 321 l(a)(l), and (a)(7) is granted in part and denied in part.

I. Background

For a more thorough recitation of the facts, see this Court's Decision and Order on Motion

Sequence 001. Defendant moves to dismiss this action pursuant to CPLR 321 l(a)(l) and

321 l(a)(7).

II. Discussion

A. Standard

A motion to dismiss based on documentary evidence pursuant to CPLR 321 l{a)(l) is

appropriately granted only when the documentary evidence utterly refutes the plaintiffs factual

allegations, conclusively establishing a defense as a matter oflaw (Goshen v Mutual Life Ins. Co.

of New York, 98 NY2d 314 [2002]). The documentary evidence must be unambiguous, of

undisputed authenticity, and its contents must be essentially undeniable (VXI Lux Holdco S.A.R.L. 155936/2024 JUDAH, ALLEGRA vs. BEHM, ANDREW Page 1 of 5 Motion No. 002

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v SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019]). A court may not dismiss a complaint

based on documentary evidence unless the factual allegations are definitively contradicted by the

evidence (Leon v Martinez, 84 NY2d 83, 88 [1994)).

When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must

give the Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings

and determines only whether the alleged facts fit within any cognizable legal theory (Sassi v

Mobile Life Support Services, Inc., 37 NY3d 236, 239 [2021]). All factual allegations must be

accepted as true (Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172, 174 [1st Dept

2004 ]). Conclusory allegations or claims consisting of bare legal conclusions with no factual

specificity are insufficient to survive a motion to dismiss (Godfrey v Spano, 13 NY3d 358, 373

[2009]; Barnes v Hodge, 118 AD3d 633, 633-634 [1st Dept 2014]). A motion to dismiss for failure

to state a claim will be granted if the factual allegations do not allow for an enforceable right of

recovery (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 13 7, 142 [2017]).

B. Replevin and Conversion

A cause of action for conversion requires a showing of a possessory interest in the property,

and the defendant's interference with it (Reifv Nagy, 175 AD3d 107, 120 [1st Dept 2019], affd

199 Ad3d 616 [1st Dept 2021 ]). To state a cause of action for replevin, a plaintiff must establish a

superior possessory right to property in a defendant's possession (Id.). New York law has

recognized that the applicable standard of possession of a pet is the "best for all concerned"

(Raymond v Lachmann, 264 Ad2d 340, 341 [1st Dept 1999]). This is a fact intensive inquiry not

suitable for determination on a motion to dismiss. At this juncture, taking the facts alleged as true,

this Court finds that Plaintiff pleaded sufficiently alleged a superior possessory interest to support

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causes of action for replevin and conversion. Defendant's motion to dismiss is denied as to

Plaintiffs replevin and conversion claims.

C. Declaratory Judgment

Plaintiff seeks a judicial declaration that she is the sole rightful owner of Georgia Peach,

that her possessory interest is superior to Defendant's, and that Georgia Peach must be returned to

Plaintiff (see generally NYSCEF Doc. 1). This relief is duplicative of Plaintiffs causes of action

for replevin and conversion, which require a determination of Plaintiffs possessory interest in

Georgia Peach, declaratory judgment would be duplicative (Upfront Megatainment, Inc. v Thiam,

215 AD3d 576, 578 [l st Dept 2023]). Therefore, Defendant's motion to dismiss Plaintiffs

declaratory judgment claim is granted.

D. Intentional and Negligent Infliction of Emotional Distress

A cause of action for intentional infliction of emotional distress must allege ( 1) extreme

and outrageous conduct, (2) intent to cause severe emotional distress; (3) a causal connection

between the conduct and injury; and (4) severe emotional distress (Brown v New York Design Ctr.,

Inc., 215 A.D.3d 1, 6 [1st Dept 2023]). To recover for negligent infliction of emotional distress in

the absence of physical injury, evidence sufficient to guarantee the genuineness of the claim is

required (Id at 5). However, intent to cause distress and extreme and outrageous conduct are not

essential elements of a cause of action for negligent infliction of emotional distress (Id. at 7).

Here, Plaintiff alleges that Defendant's refusal to return Georgia Peach caused her

emotional distress. Accepting the facts alleged as true, as this Court must, the complaint states a

claim for negligent infliction of emotional distress. Thus, Defendant's motion to dismiss is denied

as to Plaintiffs negligent infliction of emotional distress claims. Moreover, the Court finds that

withholding a dog that is subject to a shared custody agreement may rise to the level of extreme

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of Emotional Distress, Fifth Cause of Action for negligent infliction of emotional distress, and

Seventh Cause of Action for monies owed are denied; and it is further

ORDERED that Defendant's motion to dismiss Plaintiff's Third Cause of Action for

Declaratory Judgment and Sixth Cause of Action for Specific Performance is granted; and it is

further

ORDERED that within twenty days of entry of this Decision and Order, Defendant Andrew

Behm shall serve an Answer to Plaintiff's Verified Complaint; and it is further

ORDERED that within ten days of entry, counsel for Defendant shall serve a copy of this

Decision and Order, with notice of entry, on Plaintiff via NYSCEF.

This constitutes the Decision and Order of the Court.

1/6/2025 DATE RY V. ROSADO, J.S.C.

CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION

GRANTED □ DENIED x GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

155936/2024 JUDAH, ALLEGRA vs. BEHM, ANDREW Page 5 of 5 Motion No. 002

Footnotes

[3] of 5 [* 3] and outrageous conduct required to support an intentional infliction of emotional distress cause of action. Today, many couples treat pets as the equivalent to children, and therefore refusal to share the dog in accordance with a shared custody agreement may be extreme and outrageous to some. Accepting the alleged facts as true, the Court denies Defendant's motion to dismiss Plaintiffs intentional infliction of emotional distress claims. E. Specific Performance Plaintiff asks this Court to order Defendant to return Georgia Peach, which is the same relief sought in Plaintiffs replevin cause of action. Therefore, Plaintiffs cause of action for specific performance is dismissed as duplicative. F. Monies Owed Plaintiff alleges that Defendant owes her $2,615.29 for items including rent, insurance, and electric contributions from when the parties lived together. Plaintiff references text messages between the parties discussing this debt. To state a claim for unjust enrichment, a plaintiff must allege that the defendant was enriched at the plaintiffs expense, against equity and good conscience (Schroeder v Pinterest Inc., 133 A.D.3d 12, 26 [1st Dept 2015]). A relationship between the parties that could have caused reliance or inducement is required (Id.). At this stage in the proceedings, it would be premature for this Court to decide whether this was a binding agreement or a gift. Thus, Defendant's motion to dismiss Plaintiffs monies owed claim is denied. Accordingly, it is hereby, ORDERED that Defendant's motion to dismiss Plaintiffs Verified Complaint is granted in part and denied in part; and it is further ORDERED that Defendant's motion to dismiss Plaintiffs First Cause of Action for replevin, Second Cause of Action for conversion, Fourth Cause of Action for Intentional Infliction 155936/2024 JUDAH, ALLEGRA vs. BEHM, ANDREW Page 4 of 5 Motion No. 002 [* 4] 4 of 5

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