Licata v. Kelley

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly dismissed the first, third, fourth and fifth causes of action asserted in the complaint. When determining the sufficiency of a complaint, " 'the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail’ ” (Cowper Co. v Potomac Iron Works, 159 AD2d 952, 953, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275). The first, third, fourth and fifth causes of action seek to recover sums of money as damages resulting from defendant’s alleged acts of adultery with plaintiffs decedent. Causes of action to recover sums of money as damages for such acts have been abolished in this State (see, Civil Rights Law § 80-a; Coopersmith v Gold, 172 AD2d 982, 984).

The court erred, however, in failing to dismiss the second cause of action because it "is limited to seeking pecuniary loss based upon alleged intentional torts”. The second cause of action alleges that, "[a]s a result of the defendant Perry J. Kelley’s continuing breach of duty, Louis Licata has sustained damages in the amount of Five Million ($5,000,000.00) Dollars.” The only breach of duty identified in the complaint is the alleged breach of duty not to commit adultery with plaintiffs wife. Thus, the only tort for which plaintiff sought pecuniary damages was abolished by Civil Rights Law § 80-a (see, Coopersmith v Gold, supra). We modify the order on appeal, therefore, by dismissing the complaint in its entirety.

We have reviewed the remaining contentions raised on appeal and conclude that they are without merit. (Appeals from Order of Supreme Court, Niagara County, Mintz, J.—Dismiss Complaint.) Present—Lawton, J. P., Fallon, Wesley, Callahan and Doerr, JJ.