The opinion of the court was delivered by: Edelstein, District Judge:
Defendants move pursuant to Fed.R. Civ.P. 12(b)(6) to dismiss
both counts of plaintiffs' amended complaint. For reasons to be
discussed, defendants' motion is granted.
The material facts are not in dispute. Plaintiff Diamond is
president of Print-Art Services ("PAS"), a company which provides
appraisal and auction services to companies in the printing
industry. On November 13, 1986, defendant Bank of New York
("BNY") had approved a $10 million dollar loan to a printing
company, BH & P, Inc. ("BHP") to be secured by BHP's accounts
receivable, inventory and fixed assets. Only $7 million of the
$10 million was advanced to BHP at that time. The remaining $3
million was not to be made available until a "due diligence"
evaluation of BHP's asset value and quality was completed. PAS
was hired on December 12, 1985 to appraise the machinery and
equipment of BHP. PAS' appraisal was completed on December 20,
1985. On January 31, 1986, BNY advanced the remaining $3 million
to BHP. On April 14, 1986, BHP filed for bankruptcy in the United
States Bankruptcy Court for the District of New Jersey, without
ever having made a payment on the BNY loan.
On April 6, 1987, BNY filed suit against PAS and Diamond in New
York State Supreme Court (the "state action"). The complaint in
the state action was verified by defendant Rappold, general
counsel for BNY, and defendant Strassberg, an attorney with
defendant Strassberg and Strassberg, P.C. The state action
essentially alleged that PAS was negligent in its appraisal of
BHP. BNY voluntarily discontinued the state action with prejudice
on May 26, 1988.
Plaintiff filed his complaint on May 12, 1989. Two months later
plaintiff amended his complaint. Count I of Diamond's amended
complaint alleges that the state action constituted malicious
prosecution under New York State law. Count II of plaintiff's
amended complaint alleges that the state action resulted in
Diamond's suffering the tort of intentional infliction of
emotional distress under New York State law.
Defendants moved to dismiss plaintiff's amended complaint in
its entirety pursuant to Fed.R.Civ.P. 12(b)(6). It is well
settled that in such a motion, the Court should construe the
complaint in the light most favorable to the plaintiff and the
allegations in the complaint should be taken as true.
A. Count I — Malicious Prosecution
Count I of plaintiff's complaint alleges that the state action
had no basis in law and was a false and malicious prosecution. In
order for plaintiff to make out a claim for malicious prosecution
under New York law, however, the plaintiff must, among other
things, show that there was "some interference with with his
person or property." Tedeschi v. Smith Barney, Harris Upham &
Co., Inc., 548 F. Supp. 1172, 1174 (S.D.N.Y. 1982) (Weinfeld,
J.); Oceanside Enterprises, Inc. v. Capobianco, et al.,
146 A.D.2d 693, 537 N.Y.S.2d 191 (2d Dept. 1989). To satisfy this
requirement, plaintiff must show that the court in the state
action issued some "provisional remedy, such as an attachment, an
order of arrest, or an injunction." Tedeschi v. Smith Barney,
Harris Upham, Inc., supra, 548 F. Supp. at 1174; Sokol v.
Sofokles, 136 A.D.2d 535, 523 N.Y.S.2d 155, 157 (2d Dept. 1988);
Molinoff v. Sassower, 99 A.D.2d 528, 471 N.Y.S.2d 312, 313 (2d
In his amended complaint, plaintiff alleges that he suffered a
diminished credit rating after the commencement of the state
action. Plaintiff alleges that this diminished credit rating
constitutes a "constructive" attachment. Not only does this
allegation not satisfy the standard under New York law, but
plaintiff cannot even conclusively allege that the state action
was the cause of this diminished credit rating. As a result,
plaintiff cannot state a cause of action upon which relief may be
B. Count II — Intentional Infliction of Emotional Distress
Count II of plaintiff's complaint alleges that the state action
constituted intentional infliction of emotional distress.
Defendant argues that Count II is time-barred by the one-year
statute of limitations
contained in New York C.P.L.R. § 215(3). Gallagher v. Directors
Guild of America, 144 A.D.2d 261, 533 N.Y.S.2d 863 (1st Dept.
1988). Under New York law, the statute of limitations begins to
run from the time the cause of action accrued. See Sporn v. MCA
Records, Inc., 58 N.Y.2d 482, 448 N.E.2d 1324, 1327,
462 N.Y.S.2d 413, 416 (1983); see also Piesco v. City of New York,
693 F. Supp. 86, 87 (S.D.N.Y. 1988). It is hornbook law that a
"cause of action for mental shock or distress is complete when
the shock or distress occurs . . ." Restatement (Second) of
Torts, § 899 at 441.
In this instance, the plaintiff's own amended complaint alleges
that his emotion distress was first caused by defendants filing
the state action. Amended Complaint, ¶¶ 51-55. As a result,
plaintiff's claim for intentional infliction of emotional
distress first accrued when the state action was filed. The state
action was filed on April 6, 1987. Plaintiff's complaint in the
instant case was filed on May 12, 1989, more than two years ...