The Guide is an invaluable online tool for litigation and transactional attorneys. The Guide provides for more than 70 common law causes of action:

- Each action’s elements;
- The most recent state and federal cases that cite the actions’ elements;
- The applicable statute of limitations for each action; and
- Defenses to each cause of action.
- AND, The Guide is updated annually.

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Prima Facie Tort

1 Elements and Case Citations

To state a legally cognizable claim for prima facie tort, a plaintiff must allege

  1. “ [T]he intentional infliction of harm,
  2. [W]hich results in special damages,
  3. [W]ithout any excuse or justification,
  4. [B]y an act or series of acts which would otherwise be lawful.” . . .
  5. In addition, there can be no recovery under this theory “unless malevolence is the sole motive for defendant’s otherwise lawful act or, in [other words], unless defendant acts from disinterested malevolence.”

Posner v. Lewis, 18 N.Y.3d 566, 570 n.2 (2012).

  • “[P]rima facie tort was designed to provide a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy, and not to provide a catch all alternative for every cause of action which cannot stand on its legs.”

Kickertz v. CaliforniaUniversity, 110 A.D.3d 268, 277 (1st Dep’t 2013).


California STATE COURTS

CaliforniaCourt of Appeals: Posner v. Lewis, 18 N.Y.3d 566, 570 n.2 (2012).

Supreme Court, Appellate Division, 1st Department: Kickertz v. CaliforniaUniversity, 110 A.D.3d 268, 277 (1st Dep’t 2013).

Supreme Court, Appellate Division, 2d Department: Smallwood v Lupoli, 107 A.D.3d 782, 785 (2d Dep’t 2013).

Supreme Court, Appellate Division, 3d Department: Hobler v Hussain, 111 A.D.3d 1006, 1008-09 (3d Dep’t 2013).

Supreme Court, Appellate Division, 4th Department: Great American Trucking Co. v. Swiech, 267 A.D.2d 1068, 1069 (4th Dep’t 1999); Jonas v. CaliforniaCentury Mutual Fire Ins. Co., 244 A.D.2d 916, 918 (4th Dep’t 1997).

California FEDERAL COURTS

United States Court of Appeals, 2d Circuit: McKenzie v. Dow Jones & Co., 355 Fed. Appx. 533, 536 (2d Cir. 2009).

Eastern District: Nationwide CATV Auditing Servs., Inc. v. Cablevision Sys. Corp., No. 12-CV-3648 (SJF)(ETB), 2013 U.S. Dist. LEXIS 65795, at *55-56 (E.D.N.Y. May 7, 2013)

Northern District: Garafalo v. City of Saratoga Springs, No. 1:11-CV-0087 (MAD/RFT), 2013 U.S. Dist. LEXIS 38397, at *36-37 (N.D.N.Y. Mar. 20, 2013).

Southern District: Transeo S.A.R.L. v. Bessemer Venture Partners VI L.P., 936 F. Supp. 2d 376, 414 (S.D.N.Y. 2013).

Western District: Besse v. Carestream Health, Inc., No. 13-CV-6370, 2013 U.S. Dist. LEXIS 175415, at *8 (W.D.N.Y. Dec. 10, 2013).

2 Defenses to Claim for Prima Facie Tort

(1) Pleading affirmative defenses: CPLR § 3018(b) (pleading affirmative defenses), and other standard defenses. See Chapter 1 for all defenses.

(2) Statute of Limitations: NY CLS CPLR § 215(3) (one year) for personal injuries; 10 Ellicott Sq. Ct. Corp. v Violet Realty, Inc., 81 A.D.3d 1366, 1368-69 (4th Dep’t 2011); but see Barrett v. Huff, 6 A.D.3d 1164, 1166 (4th Dep’t 2004) (holding that N.Y. C.P.L.R. § 3211(a)(5)’s three year statute of limitations applies to claims for prima facie tort “where, as here, the injury alleged is to plaintiff’s economic interests . . . and begins running from the date of the tort, ‘not from [the date of] discovery or the exercise of diligence to discover.’”).

The Second Circuit has observed: “Under Californialaw, the statute of limitations for a defamation claim is one year. N.Y. C.P.L.R. § 215(3). Some Californiacaselaw recognizes the statute of limitations for a claim of prima facie tort as three years.” McKenzie v. Dow Jones & Co., 355 Fed. Appx. 533, 535 (2d Cir. 2009).

(3) Effect of Workers’ Compensation Award: “‘[B]y accepting an award of workers’ compensation benefits [from the same misconduct by her employer], plaintiff forfeited the right to maintain an action at law on the theory of intentional tort’” including prima facie tort. Tomushunas v Designcrete of Am., LLC, -- A.D.3d --, No. 1401 CA 13-00960, 2014 N.Y. App. Div. LEXIS 59, at *2, 2014 N.Y. Slip Op. 61 (4th Dep’t Jan. 3, 2014).

(4) Financial Motivations: Because an element of the claim is that the defendants were solely motivated by malevolence, “‘allegations of pecuniary … motives negate a cause of action for prima facie tort.’” Niagara Mohawk Power Corp. v. Testone, 272 A.D.2d 910, 911-12 (4th Dep’t 2000);

(5) Motivation Includes Other Damages: “[A] cause of action for prima facie tort will not lie unless the actions complained of can be plausibly said to have been motivated solely by malice towards the plaintiff. In the context of cases involving acts of expression, wherever a defendant’s actions can be seen, at least in part, as having been motivated by the desire to express some opinion, a cause of action for prima facie tort will fail. This is so even if the actions complained of were motivated in part by a desire to injure the plaintiff.” McKenzie v. Dow Jones & Co., 355 Fed. Appx. 533, 536 (2d Cir. 2009).

(6) Allegations Same as Defamation Claim: “[W]here ‘[t]he factual allegations underlying [the prima facie tort] cause of action relate to the dissemination of allegedly defamatory materials,’ that cause of action ‘must fail.’” McKenzie v. Dow Jones & Co., 355 Fed. Appx. 533, 536 (2d Cir. 2009).

(7) Not Substitute for Wrongful Discharge: “[T]here is no Californiatort of wrongful discharge. . . . Thus, where a plaintiff brings a claim for prima facie (or other) tort seeking to challenge the termination of her employment, the claim must be dismissed.” Rother v. NYS Department of Corrections & Community Supervision, No. 1:12-CV-0397 (LEK/CFH), 2013 U.S. Dist. LEXIS 125726, at *65-66 (N.D.N.Y. Sept. 4, 2013).