Goldner v. Sullivan, Gough, Skipworth, Summers & Smith

Order modified and, as modified, affirmed, with costs to defendants, in accordance with the following memorandum: Defendants appeal from an order denying (except as to a portion of one cause of action) their motion to dismiss the complaint. This is an action against the attorneys representing two fire insurance companies having coverage on plaintiffs’ home. A fire occurred on April 27, 1980, and the companies, after an investigation revealed evidence of an alleged arson, refused to pay the loss. Plaintiffs’ action against the companies (in which the propriety of the refusal to pay the loss is in issue) is still pending. The instant action against the attorneys, commenced on May 26, 1983, stems from the criminal indictment which was returned against plaintiff Murray Goldner by the Monroe County Grand Jury on July 10,1980. The indictment was dismissed on May 8, 1981 at the close of the People’s case in a trial in Monroe County Court. The complaint against defendants on various theories contains eight separately numbered causes of action. Special [1150] Term has denied defendants’ motion to dismiss brought pursuant to CPLR 3211 (subd [a], pars 1, 2, 3, 5) except for the eighth cause of action, part of which it dismissed, i.e., so much of it as alleges “ordinary” (as contrasted with “gross”) negligence. In our view, for reasons stated hereafter, the motion should have been granted in its entirety. Accordingly, the order is modified, the motion is granted and the complaint dismissed, with leave, however, to replead the second, fourth, fifth and sixth causes of action if plaintiffs are so minded. The first cause of action, for malicious prosecution, is barred by the Statute of Limitations (CPLR 215, subd 3). There is no fiduciary relationship between plaintiffs and defendants and no other circumstances are shown which would give rise to an estoppel preventing defendants from invoking the statute. Cases such as Simcuski v Saeli (44 NY2d 442) and Bender v New York City Health & Hosps. Corp. (38 NY2d 662), cited by plaintiffs, have no applicability. The second cause of action, purporting to be a cause of action for fraud, is insufficient. There is no allegation that defendants made any false statement of an existing material fact. Rather, the pleading alleges that the insurance companies failed to pay the loss as defendants allegedly had promised they would. Moreover, the vague and conclusory allegations do not comply with CPLR 3016 (subd [b]). This cause of action is dismissed with leave to replead. The third cause of action purports to be for tortiously inducing the insurance companies to breach their insurance contracts by not paying the loss. The question of whether the insurance companies have breached their contracts in refusing payment has not been determined, and any claim for inducing the breach is, therefore, premature. This cause of action is dismissed (see Curiano v Suozzi, 63 NY2d 113). We note, moreover, that the underlying factual basis for the cause of action is the advice allegedly given by the attorneys not to pay and that there is a general principle enunciated in the applicable authorities that attorneys should be free to advise their clients without fear of liability to third parties (see Hahn v Wylie, 54 AD2d 629; D. & C. Textile Corp. v Rudin, 41 Misc 2d 916; see, generally, Restatement, Torts 2d, § 772). The fourth cause of action, alleging an interference with plaintiffs’ constitutional rights under section 1983 of title 42 of the United States Code, is dismissed, with leave to replead. There is no allegation that the defendants controlled the conduct of the public officials (see Arnold v International Business Machs. Corp., 637 F2d 1350, 1356). Moreover, the conclusory [1151] allegations of conspiracy are insufficient (see Sparkman v McFarlin, 601 F2d 261, 265-267, and cases cited therein). The complaint, therefore, lacks a sufficient allegation of State action. Inasmuch as we are dismissing the fourth cause of action, the fifth cause of action (alleging an interference with plaintiffs’ rights under section 1985 of title 42 of the United States Code) must also be dismissed, with leave to replead. The sixth cause of action, purporting to allege a violation of section 487 of the Judiciary Law, is, as pleaded, insufficient. There is no allegation of any specific fraudulent or deceitful communication or statement either to the court or to the Grand Jury (see CPLR 3016, subd [b]). As with the second cause of action for fraud, leave is granted to replead if plaintiffs are so minded. The seventh cause of action for the intentional tort of infliction of emotional distress is dismissed as time barred. The applicable Statute of Limitations is CPLR 215 (subd 3) (see Schulman v Krumholz, 81 AD2d 883). There are no circumstances which would give rise to an estoppel precluding application of the statute. The eighth cause of action, as described by Special Term, is based on “negligence and/or gross negligence”. This is dismissed in its entirety (see Drago v Buonagurio, 46 NY2d 778; Levine v Graphic Scanning Corp., 87 AD2d 755). It is noted that the complaint which the Drago court held to be legally insufficient contained allegations of “gross and malicious negligence”. All concur, except Callahan and Denman, JJ., who dissent in part in the following memorandum.