Lek v. Lek

Lek v Lek

2024 NY Slip Op 31550(U)

May 1, 2024

Supreme Court, New York County

Docket Number: Index No. 153075/2023

Judge: Dakota D. Ramseur

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. 153075/2023

NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/01/2024

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. DAKOTA D. RAMSEUR PART 34M

Justice

----------------------------------------------------------------- ----------------X INDEX NO. 153075/2023

SAMUEL LEK,

MOTION DATE 12/05/2023

Plaintiff,

MOTION SEQ. NO. 003

- V -

OLESYA ALEKSANDROVNA LEK, DECISION + ORDER ON

MOTION

Defendant.

------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 8, 9, 10, 11, 12, 13,

14, 15, 16, 17, 19

were read on this motion to/for DISMISSAL

In his complaint, pro se plaintiff Samuel Lek asserts causes of action for larceny,

conversion, and infliction of emotional distress against defendant Olesya Lek. He alleges that he

put his personal property into two London storage units under the impression that they were

owned jointly by Charles Lex and his ex-wife Olesya Lex, but which now only Olesya has sole

custody and access. He alleges that Olesya possess the items now after having directed the locks

on the storage units changed and denying him access to said units. (See NYSCEF doc. no. 1 at

,is, 11, and 12.) In this Motion Sequence 001,pro se defendant moves to dismiss based upon (1)

improper service in violation of CPLR 308, (2) lack of standing, (3) the statute of limitations, (4)

failure to state a cause of action, and (5) the statute of frauds. 1 Plaintiff opposes the motion on

each ground. For the following reasons, plaintiffs motion to dismiss is granted in part.

Improper Service

Plaintiffs affidavit of service is prima facie evidence of proper service pursuant to CPLR

308 (2). (See Wells Fargo Bank, NA. v Njoku, 148 AD3d 438,439 [1st Dept 2017].) The process

server testified that on April 10, 2023, he left the summons and complaint at defendant's

apartment at 404 East 76th Street with a John Doe, who, though he refused to give his name,

"indicated they were the co-resident. The individual accepted service with direct delivery."

(NYSCEF doc. no. 17, affidavit of service.) The affidavit further describes sending a copy of the

summons and verified complaint in an envelope bearing the legend "personal and confidential."

(Id.) Defendant does not dispute that she received service; instead, she alleges-in her unswom

memorandum of law-that the "process server merely left unsealed documents with the

1

The preliminary statement in defendant's memorandum of law cites other grounds for dismissal including under

the doctrines of mootness, collateral estoppel, and unclean hands. In addition, she cites the "unauthorized use of

protected documents" as a grounds for dismissal. However, defendant does not advance any substance arguments on

these grounds, and, therefore, the Court considers these grounds waived.

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doorman." 2 Since only a sworn, non-nonconclusory denial of service is sufficient to rebut

plaintiffs prima facie showing of proper service (see NYCTL 1998-1 Trust v Rabinowitz, 7

AD3d 459,459 [1st Dept 2004]), defendant is not entitled to dismissal on this ground.

Lack of Standing, and Statute of Frauds

Defendant challenges whether plaintiff has pled an injury in fact attributable to

defendant's actions such that he has demonstrated standing to bring this action. She argues that

plaintiff alleges damages resulting from a breach of contract yet he has not provided any

evidence or documentation of said valid and enforceable contract. (NYSCEF doc. no. 9 at 10-

11.) The problem is that plaintiffs complaint contains no such cause of action for breach of

contract-only those for larceny, conversion, and infliction of emotional distress. (NYSCEF doc.

no. 1, complaint.) As to these causes of action, in alleging that defendant retains possession of

his property, plaintiff has clearly alleged an injury in fact that is traceable to defendant's conduct.

The fact that plaintiff does not base any of his causes of action around a contract, let alone a oral

contract, also precludes applicability of the Statute of Frauds under New York General

Obligations Law § 5-701. Accordingly, her motion to dismiss on these grounds is denied.

Statute ofLimitations

Defendant contends that the statute of limitations period for larceny and conversion

(three-years-see CPLR § 214) and intentional infliction of emotional distress (one-year-see

Winslow v New York-Presbyt./Weill-Cornell Med. Ctr., 203 AD3d 533, 534 [1st Dept 2022])

have all expired. A defendant who seeks dismissal of a complaint pursuant to CPLR 3211 (a) (5)

on grounds that it is barred by the statute oflimitations bears the initial burden of proving, prima

facie, that the time to sue has expired. (Listwon v 500 Metro. Owner, LLC, 188 AD3d 1028, 1029

[2d Dept 2020].) With respect to the larceny and conversion causes of action, defendant has

failed to demonstrate, prima facie, that the limitation period has expired. Since plaintiff

commenced this action on April 4, 2023, defendant would have to establish that these causes

accrued before that date in 2020. Yet, in relevant part, plaintiffs complaint alleges that,

"sometime later year," i.e., sometime after March 2020, he returned to the storage units to find

that defendant had specifically instructed the operators of the storage unit to deny him access and

that defendant had changed the locks. (NYSCEF doc. no. 1 at ,i 11.) The complaint is no more

specific than this about when the alleged larceny and conversion took place. Since (1) defendant

bears the burden of demonstrating when the applicable statute of limitations began to accrue and

expire and (2) her memorandum of law does not allege, let alone demonstrate, that the accrual

date was before April 4, 2020, she has not met her burden. 3 Because the Court dismisses

2

Defendant's memorandum oflaw refers to her own affidavit but she did not execute one in support of her motion.

3

Plaintiff argues that the continuing wrong doctrine saves these causes of action even if plaintiff demonstrated that

the event(s) constituting the wrong took place before April 4, 2020. The Court is not persuaded. The continuing

wrong doctrine "may be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful

conduct. The distinction is between a single wrong that has continuing effects and a series of independent, distinct

wrongs." (Henry v Bank ofAm., 147 AD3d 599, 601 [1st Dept 2017].) Plaintiff's position-that "although

Defendant first refused to return Plaintiff's property in July of 2021, she continues to do so. Thus, every day, that

Defendant holds on to Plaintiff's property, her wrongful act continues"-is exactly the type of wrong the doctrine

does not cover. As the Court explained, the doctrine is inapplicable where there is one tortious act complained of

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plaintiff's infliction of emotional distress on other grounds, it need not discuss it as it relates to

the statute of limitations.

Failure to State a Cause ofAction

On a motion to dismiss for failure to state a cause of action under CPLR 3211 ( a) (7),

courts afford the pleadings a liberal construction, accept the facts as alleged in the complaint as

true, and give the plaintiff the benefit of every possible favorable inference. (Leon v Martinez, 84

NY2d 83, 87 [1994]; JF Capital Advisors, LLC v Lightstone Group, LLC, 25 NY3d 759, 764

[2015].) Nonetheless, conclusory allegations-claims consisting of bare legal conclusions with

no factual specificity-are insufficient to survive a motion to dismiss.' (See Godfrey v Spano, 13

NY3d 358, 373 [2009]; Barnes v Hodge, 118 AD3d 633, 633-634 [1st Dept 2014].) A court's

inquiry is limited to assessing the legal sufficiency of the plaintiff's pleadings; accordingly, its

only function is to determine whether, from facts alleged and inferences drawn therefrom,

plaintiff has stated the elements of a cognizable cause of action. (JF Capital Advisors, 25 NY3d

at 7 64; Skill Games, LLC v Brody, I AD3d 24 7, 250 [1st Dept 2003].)

Defendant's motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause

of action is granted as to plaintiff's larceny claim and his infliction of emotional distress claim.

In paragraph 35 of his complaint, plaintiff cites New York State Penal Code §155.05's definition

of the crime oflarceny and, in paragraph 36, he alleges that defendant's conduct meets each

element to be charged with said crime. Plaintiff has not demonstrated that larceny is an

independent civil cause of action. Moreover, the essence of the crime oflarceny, which §155.05

defines as the wrongful taking, obtaining, or withholding of another's property, is the same as the

civil cause of action for conversion, which occurs when "someone, intentionally and without

authority, assumes or exercises control over personal property belonging to someone else,

interfering with that person's right of possession" (Family Health Mgt., LLC v Rohan Devs.,

LLC, 207 AD3d 136, 138-139 [1st Dept 2022]). As such, plaintiff's larceny claim, even if

recognizes as a cognizable claim, is no doubt duplicative of his claim for conversion.

To properly plead an intentional infliction of emotional distress, plaintiff must allege (1)

extreme and outrageous conduct, (2) an intent to cause, or disregard of a substantial probability

of causing, severe emotional distress, (3) a causal connection between the conduct and injury,

and (4) severe emotional distress. (Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 56

[2016]; Cohn-Frankel v United Synagogue of Conservative Judaism, 246 AD2d 332, 332 [1st

Dept 1998]) In Chanko, the Court of Appeals described the level of conduct necessary to satisfy

the outrageousness element as one that is "so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community." (Id., citing Howell v New York Post Co., 81 NY2d 115, 121 [1993] [explaining the

"price of flexibility in redressing utterly reprehensible behavior" is that the "requirements of the

[tort] are rigorous and difficult to satisfy."].) The defendant's alleged conduct simply does not

rise to this level of conduct: plaintiff merely alleges that (1) in failing to return certain ski

equipment belonging to him, defendant deprived him of using said equipment, (2) she has failed

to appear at several scheduled walk-throughs of a London apartment that he rents from his son

since the cause of action accrues in those cases at the time that the wrongful act first injured plaintiff and it does not

change as a result of continuing consequential damages. (Id.)

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and her, which has caused him "considerable inconvenience," and (3) she willfully defied a

Court order providing access to the two storage units. (NYSCEF doc. no. 1 at ,r 42-47.) To the

extent plaintiff's claim is for negligent infliction of emotional distress (which, unlike intentional-

infliction claims, does not require extreme and outrageous conduct), plaintiff has not alleged that

defendant breached a duty of care owed to him that directly resulted in emotional harm to him.

(See Brown v New York Design Ctr., Inc., 215 AD3d 1, 9 [1st Dept 2023].) As such, this cause of

action is dismissed.

Accordingly, for the foregoing reasons, it is hereby

ORDERED that the branch of defendant Olesya Lek's motion to dismiss pursuant to

CPLR 3211 (a)(7) is granted as to plaintiff Samuel Lek's causes of action for larceny and

infliction of emotional distress but otherwise denied; and it is further

ORDERED that the branch of defendant's motion to dismiss plaintiff's remaining cause

of action for conversion pursuant to CPLR 3211 (a) (1), (a) (5), and (a) (8) is denied; and it is

further

ORDERED that the parties appear at 60 Centre Street, Courtroom 341 on May 7, 2024, at

9:30 a.m. for a preliminary conference with the Court; and it is further

ORDERED that plaintiff shall serve a copy of this order, along with notice of entry,

within twenty (20) days of entry.

This constitutes the Decision and Order of the Court.

5/1/2024

DATE

~

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

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

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