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D B ANY OUN PK AW INDEX NO. 901925-24
NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/01/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF ALBANY
JOHN DOE,
Plaintiff,
-against- DECISION AND ORDER
(Motions 2, 3, 4 & 5)
Index No.: 901925-24
TOBIN AND DEMPF, LLP and
MICHAEL L. COSTELLO,
Defendants
TOBIN AND DEMPF, LLP and MICHAEL L.
COSTELLO,
Third-Party Plaintiffs,
-against-
MERSON LAW, PLLC and JORDAN K.
MERSON, ESQ., and JESSE R. MAUTNER, ESQ.,
Third-Party Defendants.
APPEARANCES: Jordan Merson, Esq.
Jesse R. Mautner, Esq.
Merson Law, PLLC
Attorneys for Plaintiff John Doe and
Third-Party Defendants
950 Third Avenue, 18" Floor
New York, New York 10022
Michael L. Costello, Esq.
Tobin and Dempf, LLP
Defendants and
Third-Party Plaintiffs
515 Broadway, 4" Floor
Albany, New York 12207
Thomas B. Cronmiller, Esq.
Tara J. Sciortino, Esq.
Samantha M. McDermott, Esq
Barclay Damon LLP
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Attorneys for Defendants
2000 Five Star Bank Plaza
100 Chestnut Street
Rochester, New York 14604
Jonathan P. Whitcomb, Esq.
Diserio Martin O’Connor & Castiglioni, LLP
Attorneys for Third-Party Defendants
50 Main Street, 10" Floor
White Plains, New York 10606
LYNCH,J.:
This litigation arises out of a lawsuit brought by plaintiff John Doe against the Roman
Catholic Diocese of Albany and the Church of St. Mary’s/St. Paul’s pursuant to CPLR 214-g (also
known as the Child Victims Act, hereinafter “the CVA”). Defendants/third-party plaintiffs Tobin
and Dempf, LLP and Michael L. Costello, Esq. (hereinafter “the Tobin and Dempf defendants”)
represented the defendants in this original action (hereinafter referred to as “the CVA action”),
while Doe was represented by third-party defendants Merson Law, PLLC, Jordan Merson, Esq.
and Jesse Mautner, Esq. (hereinafter “the Merson Law defendants”). On March 1, 2023, the CVA
action was settled for a sum of $375,000, payable to Merson Law, PLLC as attorneys for Doe,
with payment due within 21 days of the execution of the settlement agreement. On March 15,
2023, the Diocese filed for bankruptcy, by separate counsel, pursuant to Chapter 11 of the U.S.
Bankruptcy Code. Doe filed a motion in the United States Bankruptcy Court, Northern District of
New York, for an order pursuant to 11 U.S.C. § 365 (d) (2) compelling the Diocese to assume or
reject the settlement agreement as an executory contract. This motion was denied.
Doe thereafter commenced the instant action against the Tobin and Dempf defendants,
asserting that they intentionally misrepresented the financial status of the Diocese to induce him
to settle the action and fraudulently induced him to enter into the settlement agreement. Doe also
asserted that the Tobin and Dempf defendants breached the settlement agreement by failing to
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issue payment as set forth within it, as well as claims for intentional and negligent infliction of
emotion distress, breach of promissory estoppel and breach of the covenant of good faith and fair
dealing. The Tobin and Dempf defendants answered, denying the allegations and asserting a
counterclaim for abuse of process. The Tobin and Dempf defendants also commenced a third-party
action against the Merson Law defendants, again asserting that the filing of the instant action
constituted an abuse of process.
There are now four motions pending before this Court: (1) a motion pursuant to CPLR
3211 (a) (6) and (7) by the Merson Law defendants to dismiss the Tobin and Dempf defendants’
abuse of process counterclaim and third-party claims; (2) a motion pursuant to 22 NYCRR 130-
1.1 by the Merson Law defendants seeking sanctions against the Tobin and Dempf defendants for
filing frivolous abuse of process claims against the Merson Law defendants; (3) a motion pursuant
to CPLR 3211 (a) (7) by the Tobin and Dempf defendants to dismiss the complaint; and (4) a
motion by Doe to amend his complaint pursuant to CPLR §§ 3025 (b) and 203 (f). All motions are
opposed by the relevant opposing parties.
I The Tobin and Dempf Defendants’ Motion to Dismiss
The motion to dismiss by the Tobin and Dempf defendants will be addressed first. “On a
motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court
must accept the facts as alleged in the complaint as true, accord [the] plaintiff the benefit of every
possible favorable inference, and determine only whether the facts as alleged fit within any
cognizable legal theory. The question to be resolved on such a motion is not whether the plaintiff
can ultimately establish his or her allegations and is likely to prevail, but whether, if believed, his
or her complaint sets forth facts that constitute a viable cause of action” (Brown v University of
Rochester, 224 AD3d 1180, 1181 [3d Dept 2024] internal quotation marks, brackets and citations
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omitted]; see Hartshorne v Roman Catholic Diocese of Albany, M.Y., 200 AD3d 1427, 1429 [3d
Dept 2021]). “However, the favorable treatment accorded to a plaintiff's complaint is not limitless
and, as such, conclusory allegations — claims consisting of bare legal conclusions with no factual
specificity — are insufficient to survive a motion to dismiss” (FF. v State of New York, 194 AD3d
80, 83-84 [3d Dept 2021] [internal quotation marks and citations omitted], appeal dismissed & lv
denied 37 NY3d 1040 [2021], cert denied US _ , 142 S Ct 278 [2022]); accord Radiation
Oncology Servs. of Cent. N.Y., P.C. v Warren, 224 AD3d 979, 982 [3d Dept 2024)).
a. Doe’s Fraud, Fraudulent Inducement and Aiding and Abetting Fraud Claims
“To establish a cause of action for fraud, plaintiff must demonstrate that [a] defendant| ]
knowingly misrepresented a material fact upon which plaintiff justifiably relied and which caused
plaintiff to sustain damages” (Klafehn v Morrison, 75 AD3d 808, 810 [2010]; accord Sample v
Yokel, 94 AD3d 1413, 1415 [4th Dept 2012]). “Where a cause of action or defense is based upon
misrepresentation [or] fraud . . . the circumstances constituting the wrong shall be stated in detail”
(CPLR 3016 [b]). This standard is “met when the facts are sufficient to permit a reasonable
inference of the alleged conduct” (Pludeman v Northern Leasing Sys., Inc., 10 NY33d 486, 492
[2008]; see Kelsey v Lenore R.,211 AD3d 1361, 1362 [3d Dept 2022], appeal dismissed 39 NY3d
1091 [2023]).
Doe alleges that the Tobin and Dempf defendants engaged in fraud by falsely stating that
the Diocese would need to file for bankruptcy if the CVA action did not settle. Even assuming that
every pleaded fact is true, Doe has failed to plead his fraud claims with the necessary specificity.
The complaint makes no allegations of specific material mistepresentations by the Tobin and
Dempf defendants, instead attempting to infer from the Diocese’s post-settlement bankruptcy that
the Tobin and Dempf defendants knew the Diocese intended to declare bankruptcy no matter the
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outcome of plaintiff's CVA action but misrepresented to Doe that the Diocese would not declare
bankruptcy if Doe settled his claim. These vague allegations fail to meet the heightened pleading
standard for causes of action based in fraud, and therefore Doe’s fraud, fraudulent inducement and
related aiding and abetting claims must be dismissed (see Kelsey v Lenore R., 211 AD3d at 1363;
Greg Beeche, Logistics, LLC v Cross Country Constr, LLC, 210 AD3d 1158, 1162 [3d Dept
2022], Iv denied 40 NY3d 902 [2023]).
b. Doe’s Breach of Contract and the Covenant of Good Faith and Fair Dealing Claims
Doe alleges that the Tobin and Dempf defendants breached the contract by failing to issue
the $375,000 settlement payment by March 29, 2023. Under the settlement agreement, the
“releases” were required to issue the $375,000 settlement to Doe within the requisite time period
to plaintiff, which amount to March 29, 2023. “Releasees” were defined in the settlement
agreement as “the Roman Catholic Diocese of Albany, New York, including its parishes,
subsidiaries, agencies, affiliates, and related entitles, its respective present and former employees,
clergy, officials, trustees, directors, officers and agents and its insurers.” Therefore, it is clear from
the text of the settlement agreement that the Tobin and Dempf defendants were not a party to the
settlement agreement. As such, there was no contract between Doe and the Tobin and Dempf
defendants, and so Doe cannot establish a claim for breach of contract against them (see Radiation
Oncology Servs. of Cent. N.Y., P.C. v Our Lady of Lourdes Mem. Hosp., Inc., 221 AD3d 1324,
1326 [3d Dept 2023]; EDW Drywall Constr., LLC v U.W. Marx, Inc., 186 AD3d 1720, 1722 [3d
Dept 2020]). Therefore, Doe’s breach of contract claims must be dismissed.
Similarly, because the Tobin and Dempf defendants were not a party to the settlement
agreement, Doe cannot enforce the duty of good faith and fair dealing against them, and so Doe’s
claims for breach of the covenant of good faith and fair dealing must also be dismissed (see Levine
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v Yokell, 258 AD2d 296, 296-297 [1st Dept 1999]; Reels v Dynamics in Play, LLC, 78 Misc 3d
1217[A], *9 [Sup Ct, Kings County 2023]).
c. Doe’s Promissory Estoppel Claims
“To establish a viable cause of action sounding in promissory estoppel, the aggrieved party
must allege (1) a clear and unambiguous promise, (2) reasonable and foreseeable reliance by the
party to whom the promise is made, and (3) an injury sustained in reliance on the promise”
(Villnave Constr. Servs., Inc. v Crossgates Mall Gen. Co. Newco, LLC, 201 AD3d 1183, 1186 [3d
Dept 2022] [internal quotation marks and citations omitted]; see Roufaiel v Ithaca Coll., 241 AD2d
865, 869 [3d Dept 1997]). Doe alleges that the Tobin and Dempf defendants agreed to pay him the
$375,000 settlement in exchange for the release of his claims. However, as shown by the settlement
agreement in the CVA action, the Tobin and Dempf defendants made no agreement with Doe to
pay him the settlement agreement — the Diocese did. Therefore, Doe has not alleged a clear and
unambiguous promise by the Tobin and Dempf defendants (see Fourth Branch Assoc.
Mechanicville v Niagara Mohawk Power Corp., 235 AD2d 962, 964 [3d Dept 1997]). Moreover,
the alleged promise that was breached is the same allegation underlying Doe’s breach of contract
claim, without an allegation of a duty independent of the settlement agreement, making the
promissory estoppel claim duplicative (see Coleman & Assoc. Enters., Inc. v Verizon Corporate
Servs. Group, Inc., 125 AD3d 520, 521 [1st Dept 2015]). Therefore, Doe’s promissory estoppel
claims must be dismissed.
d. Doe’s Intentional and Negligent Infliction of Emotional Distress Claims
To establish a claim for intentional infliction of emotional distress, a plaintiff must prove
that a defendant’s “conduct has been so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable
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in a civilized community” (Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983];
accord Gray v Schenectady City School Dist., 86 AD3d 771, 772 [3d Dept 2011]). Doe alleges
that the Tobin and Dempf defendants falsely stated that the Diocese would have to declare
bankruptcy if he did not settle prior to trial, but the Diocese declared bankruptcy anyway. Even
liberally construed, these allegations do not meet the “strict standard” required for an intentional
infliction of emotional distress claim to survive a motion to dismiss (id; see Doin v Dane, 82
AD3d 1338, 1348 [3d Dept 2011], /v denied: 17 NY3d 713 [2011]). The same is true of Doe’s
claims for negligent infliction of emotional distress (see Kenneth S. v Berkshire Farm Ctr, & Servs.
for Youth, 36 AD3d 1092, 1093-1094 [3d Dept 2007]). Furthermore, the conduct complained of is
within the scope of Doe’s fraud claims, and so the intentional and negligent infliction of emotional
distress claims must be dismissed (see Fay v Troy City Sch, Dist., 197 AD3d 1423, 1424 [3d Dept
2021]; Demas v Levitsky, 291 AD2d 653, 660 [3d Dept 2002], Jv dismissed 98 NY2d 728 [2002]).
Il. Doe’s Motion to Amend the Complaint
“A party may amend his or her pleading, or supplement it by setting forth additional or
subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties.
Leave shall be freely given upon such terms as may be just including the granting of costs and
continuances. Any motion to amend or supplement pleadings shall be accompanied by the
proposed amended or supplemental pleading clearly showing the changes or additions to be made
to the pleading” (CPLR 3025 [b]; see Petry v Gillon, 199 AD3d 1277, 1280 [3d Dept 2021]). In
determining whether to grant leave to amend, a court “should consider how long the party seeking
the amendment was aware of the facts upon which the motion was predicated and whether a
reasonable excuse for the delay was offered” (Alter v Quality Choice Healthcare, Inc., 184 AD3d
612, 613 [2d Dept 2010] [internal quotation marks, brackets and citation omitted]; accord
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Benjamin v 270 Malcolm X Dev., Inc.,214 AD3d 762, 764 [2d Dept 2023]). Doe moves to amend
his complaint, asking to add key allegations — specifically, that the Tobin and Dempf defendants
not only told Doe “if he did not settle [the CVA action], the Diocese would file for bankruptcy to
avoid a jury trial,” but that they also told him “if he did settle [the CVA action,] he would be
compensated.” This is significantly different from Doe’s original complaint, which contained the
former allegation, but not the latter. The latter allegation significantly alters the substance of the
complaint.
Doe’s motion is denied. First, the amended complaint attached to the motion failed to
“clearly show[ ] the changes or additions to be made to” the complaint, meaning that the motion
fails to comply with CPLR 3025 (b), which alone is enough to warrant its dismissal (see Drice v
Queens County Dist. Attorney, 136 AD3d 665, 665 [2d Dept 2016]; Fermas v Ampco System
Parking, 2016 NY Slip Op 30294 [U], 2016 WL 743777, *3 [Sup Ct, Queens County 2016]).
Moreover, Doe does not offer a satisfactory excuse for the failure to plead this absolutely critical
allegation in the initial complaint, even though it arises from the same settlement discussions that
were addressed by the initial complaint. Nor does Doe explain why this allegation was added only
after the Tobin and Dempf defendants moved to dismiss the complaint. Therefore, given this lack
of a reasonable explanation and the undue prejudice to the Tobin and Dempf defendants the
amendment would cause at this stage of the case, following the filing of their motion to dismiss,
the motion to amend the complaint is denied (see Yong Soon Oh v Hua Jin, 124 AD3d 639, 641
[2d Dept 2014]; Alter v Quality Choice Healthcare, Inc., 184 AD3d at 613).
Il. The Merson Law Defendants’ Motion to Dismiss
The Merson Law defendants argue that the Tobin and Dempf defendants’ counterclaim and
third-party action for abuse of process should be dismissed, as the elements for an abuse of process
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claim are not met. To establish an abuse of process claim, a plaintiff must show “(1) regularly
issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and
(3) use of the process in a perverted manner to obtain a collateral objective” (Curiano v Suozzi, 63
NY2d 113, 116 [1984]; see Xiaokang Xu v Xiaoling Shirley He, 147 AD3d 1223, 1224 [3d Dept
2017]). The allegations in the Tobin and Dempf defendants’ third-party complaint recite the facts
of the case — that the parties participated in mediation sessions to settle the CVA action, that a
settlement was reached and that the Merson Law defendants tried to enforce the settlement as an
executory contract in Bankruptcy Court. Even liberally construed, the complaint does not contain
allegations that the filing of the instant action by the Merson Law defendants was done with an
intent to do harm to the Tobin and Dempf defendants without excuse or justification (see Silberman
v Flaum, 225 AD2d 985, 985-986 [3d Dept 1996]; Key Bank of N. N.Y. v Lake Placid Co., 103
AD2d 19, 26-27 [3d Dept 1984], appeal dismissed 64 NY2d 644 [1984]), and so the Merson Law
defendants’ motion to dismiss the abuse of process counterclaim/third-party action is granted.
IV. The Merson Law Defendants’ Motion for Sanctions
The Merson Law defendants move for sanctions against the Tobin and Dempf defendants
based on the filing of their abuse of process counterclaim and third-party action, arguing that these
filings were frivolous. “The court, in its discretion, may award to any party or attorney in any civil
action or proceeding before the court . . . costs in the form of reimbursement for actual expenses
reasonably incurred and reasonable attorney's fees[ Jresulting from frivolous conduct” (22
NYCRR 130-1.1 [a]). Conduct is frivolous, in relevant part, if “it is completely without merit in
law and cannot be supported by a reasonable argument for an extension, modification or reversal
of existing law” or if “it is undertaken primarily to delay or prolong the resolution of the litigation”
(22 NYCRR 130-1.1 [c] [2]). “In determining whether the conduct undertaken was frivolous, the
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court shall consider, among other issues[,] the circumstances under which the conduct took place,
including the time available for investigating the legal or factual basis of the conduct, and whether
or not the conduct was continued when its lack of legal or factual basis was apparent, should have
been apparent, or was brought to the attention of counsel or the party” (id.).
Nothing in the record indicates that the Tobin and Dempf defendants lacked a good faith
basis upon which to bring their abuse of process claim, or that the counterclaim and third-party
action were not supported by a reasonable argument in law, despite their dismissal here.
Furthermore, the email correspondence attached to the motion does not show that the Tobin and
Dempf defendants were attempting to delay or prolong the resolution of the litigation; it was
merely a query to the Court regarding scheduling. As the challenged conduct is not frivolous, the
Merson Law defendants’ motion for sanctions is denied (see Tso-Horiuchi v Horiuchi, 122 AD3d
918, 918 [2d Dept 2014]; Dank v Sears Holding Mgt. Corp., 69 AD3d 557, 558 [2d Dept 2010]).
Any remaining arguments not specifically addressed herein have been considered and
found to be unpersuasive or need not be reached in light of this determination. Accordingly, it is
hereby
ORDERED that the Tobin and Dempf defendants’ motion to dismiss the complaint is
granted; and it is further
ORDERED that Doe’s motion for leave to amend the complaint is denied; and it is further
ORDERED that the Merson Law defendants’ motion to dismiss the abuse of process
counterclaim/third-party action is granted; and it is further
ORDERED that the Merson Law defendants’ motion for sanctions is denied.
This memorandum constitutes the Decision and Order of the Court. The original Decision
and Order is being uploaded to the NYSCEF system for filing and entry by the Albany County
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Clerk. The signing of this Decision and Order and uploading to the NYSCEF system shall not
constitute filing, entry, service, or notice of entry under CPLR 2220 and § 202.5-b(h)(2) of the
Uniform Rules for the New York State Trial Courts. Counsel is not relieved from the applicable
provisions of those rules with respect to service and notice of entry of the Decision and Order.
SO ORDERED.
ENTER.
Dated: June 28, 2024
Albany, New York we Seo
BON. DANIEL C. LYNE JS.C.
Papers considered:
1 Notice of Motion to Strike/Dismiss, dated April 2, 2024;
2 Affirmation in Support of Motion to Strike/Dismiss of Christopher J. Martin, Esq., dated
April 2, 2024; together with Exhibits 1 — 4;
3 Affirmation in Opposition to Motion to Strike/Dismiss of Michael L. Costello, Esq., dated
May 9, 2024, together with Exhibits A — I;
4. Affirmation in Further Support of Motion to Strike/Dismiss of Jonathan P. Whitcomb,
Esq., dated May 13, 2024;
5 Notice of Motion for Sanctions, dated May 10, 2024;
6 Affirmation in Support of Motion for Sanctions of Jordan K. Merson, Esq., dated May 10,
2024, together with Exhibits 1 — 7;
7 Affirmation in Opposition to Motion for Sanctions of Michael L. Costello, Esq., dated May
22, 2024, together with Exhibits A — B;
8 Affirmation in Further Support of Motion for Sanctions of Jordan K. Merson, Esq., dated
June 4, 2024;
9 Notice of Motion to Dismiss, dated May 15, 2024;
10. Affirmation in Support of Motion to Dismiss of Samantha M. McDermott, Esq., dated May
15, 2024, together with Exhibits A — D;
11. Affirmation in Opposition to Motion to Dismiss of Jordan K. Merson, Esq., dated June 4,
2024, together with Exhibits 1 — 11;
12. Notice of Cross-Motion for Sanctions, dated June 4, 2024;
13. Affirmation in Support of Cross-Motion for Sanctions of Jordan K. Merson, dated June 4,
2024, together with Exhibits 1 — 11;
14. Affirmations in Opposition to Cross-Motions for Sanctions of Tara J. Sciortino, Esq. and
Michael L. Costello, Esq., both dated June 7, 2024.
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D B ANY OUN PK AW INDEX NO. 901925-24 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/01/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY JOHN DOE, Plaintiff, -against- DECISION AND ORDER (Motions 2, 3, 4 & 5) Index No.: 901925-24 TOBIN AND DEMPF, LLP and MICHAEL L. COSTELLO, Defendants TOBIN AND DEMPF, LLP and MICHAEL L. COSTELLO, Third-Party Plaintiffs, -against- MERSON LAW, PLLC and JORDAN K. MERSON, ESQ., and JESSE R. MAUTNER, ESQ., Third-Party Defendants. APPEARANCES: Jordan Merson, Esq. Jesse R. Mautner, Esq. Merson Law, PLLC Attorneys for Plaintiff John Doe and Third-Party Defendants 950 Third Avenue, 18" Floor New York, New York 10022 Michael L. Costello, Esq. Tobin and Dempf, LLP Defendants and Third-Party Plaintiffs 515 Broadway, 4" Floor Albany, New York 12207 Thomas B. Cronmiller, Esq. Tara J. Sciortino, Esq. Samantha M. McDermott, Esq Barclay Damon LLP 1 of 11 D B ANY OUN PK AW INDEX NO. 901925-24 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/01/2024 Attorneys for Defendants 2000 Five Star Bank Plaza 100 Chestnut Street Rochester, New York 14604 Jonathan P. Whitcomb, Esq. Diserio Martin O’Connor & Castiglioni, LLP Attorneys for Third-Party Defendants 50 Main Street, 10" Floor White Plains, New York 10606 LYNCH,J.: This litigation arises out of a lawsuit brought by plaintiff John Doe against the Roman Catholic Diocese of Albany and the Church of St. Mary’s/St. Paul’s pursuant to CPLR 214-g (also known as the Child Victims Act, hereinafter “the CVA”). Defendants/third-party plaintiffs Tobin and Dempf, LLP and Michael L. Costello, Esq. (hereinafter “the Tobin and Dempf defendants”) represented the defendants in this original action (hereinafter referred to as “the CVA action”), while Doe was represented by third-party defendants Merson Law, PLLC, Jordan Merson, Esq. and Jesse Mautner, Esq. (hereinafter “the Merson Law defendants”). On March 1, 2023, the CVA action was settled for a sum of $375,000, payable to Merson Law, PLLC as attorneys for Doe, with payment due within 21 days of the execution of the settlement agreement. On March 15, 2023, the Diocese filed for bankruptcy, by separate counsel, pursuant to Chapter 11 of the U.S. Bankruptcy Code. Doe filed a motion in the United States Bankruptcy Court, Northern District of New York, for an order pursuant to 11 U.S.C. § 365 (d) (2) compelling the Diocese to assume or reject the settlement agreement as an executory contract. This motion was denied. Doe thereafter commenced the instant action against the Tobin and Dempf defendants, asserting that they intentionally misrepresented the financial status of the Diocese to induce him to settle the action and fraudulently induced him to enter into the settlement agreement. Doe also asserted that the Tobin and Dempf defendants breached the settlement agreement by failing to 2 of 11 D B ANY OUN PK AW INDEX NO. 901925-24 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/01/2024 issue payment as set forth within it, as well as claims for intentional and negligent infliction of emotion distress, breach of promissory estoppel and breach of the covenant of good faith and fair dealing. The Tobin and Dempf defendants answered, denying the allegations and asserting a counterclaim for abuse of process. The Tobin and Dempf defendants also commenced a third-party action against the Merson Law defendants, again asserting that the filing of the instant action constituted an abuse of process. There are now four motions pending before this Court: (1) a motion pursuant to CPLR 3211 (a) (6) and (7) by the Merson Law defendants to dismiss the Tobin and Dempf defendants’ abuse of process counterclaim and third-party claims; (2) a motion pursuant to 22 NYCRR 130- 1.1 by the Merson Law defendants seeking sanctions against the Tobin and Dempf defendants for filing frivolous abuse of process claims against the Merson Law defendants; (3) a motion pursuant to CPLR 3211 (a) (7) by the Tobin and Dempf defendants to dismiss the complaint; and (4) a motion by Doe to amend his complaint pursuant to CPLR §§ 3025 (b) and 203 (f). All motions are opposed by the relevant opposing parties. I The Tobin and Dempf Defendants’ Motion to Dismiss The motion to dismiss by the Tobin and Dempf defendants will be addressed first. “On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must accept the facts as alleged in the complaint as true, accord [the] plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. The question to be resolved on such a motion is not whether the plaintiff can ultimately establish his or her allegations and is likely to prevail, but whether, if believed, his or her complaint sets forth facts that constitute a viable cause of action” (Brown v University of Rochester, 224 AD3d 1180, 1181 [3d Dept 2024] internal quotation marks, brackets and citations 3 of 11 D B ANY OUN PK AW INDEX NO. 901925-24 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/01/2024 : omitted]; see Hartshorne v Roman Catholic Diocese of Albany, M.Y., 200 AD3d 1427, 1429 [3d Dept 2021]). “However, the favorable treatment accorded to a plaintiff's complaint is not limitless and, as such, conclusory allegations — claims consisting of bare legal conclusions with no factual specificity — are insufficient to survive a motion to dismiss” (FF. v State of New York, 194 AD3d 80, 83-84 [3d Dept 2021] [internal quotation marks and citations omitted], appeal dismissed & lv denied 37 NY3d 1040 [2021], cert denied US _ , 142 S Ct 278 [2022]); accord Radiation Oncology Servs. of Cent. N.Y., P.C. v Warren, 224 AD3d 979, 982 [3d Dept 2024)). a. Doe’s Fraud, Fraudulent Inducement and Aiding and Abetting Fraud Claims “To establish a cause of action for fraud, plaintiff must demonstrate that [a] defendant| ] knowingly misrepresented a material fact upon which plaintiff justifiably relied and which caused plaintiff to sustain damages” (Klafehn v Morrison, 75 AD3d 808, 810 [2010]; accord Sample v Yokel, 94 AD3d 1413, 1415 [4th Dept 2012]). “Where a cause of action or defense is based upon misrepresentation [or] fraud . . . the circumstances constituting the wrong shall be stated in detail” (CPLR 3016 [b]). This standard is “met when the facts are sufficient to permit a reasonable inference of the alleged conduct” (Pludeman v Northern Leasing Sys., Inc., 10 NY33d 486, 492 [2008]; see Kelsey v Lenore R.,211 AD3d 1361, 1362 [3d Dept 2022], appeal dismissed 39 NY3d 1091 [2023]). Doe alleges that the Tobin and Dempf defendants engaged in fraud by falsely stating that the Diocese would need to file for bankruptcy if the CVA action did not settle. Even assuming that every pleaded fact is true, Doe has failed to plead his fraud claims with the necessary specificity. The complaint makes no allegations of specific material mistepresentations by the Tobin and Dempf defendants, instead attempting to infer from the Diocese’s post-settlement bankruptcy that the Tobin and Dempf defendants knew the Diocese intended to declare bankruptcy no matter the 4 of 11 D B ANY OUN PK AW INDEX NO. 901925-24 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/01/2024 outcome of plaintiff's CVA action but misrepresented to Doe that the Diocese would not declare bankruptcy if Doe settled his claim. These vague allegations fail to meet the heightened pleading standard for causes of action based in fraud, and therefore Doe’s fraud, fraudulent inducement and related aiding and abetting claims must be dismissed (see Kelsey v Lenore R., 211 AD3d at 1363; Greg Beeche, Logistics, LLC v Cross Country Constr, LLC, 210 AD3d 1158, 1162 [3d Dept 2022], Iv denied 40 NY3d 902 [2023]). b. Doe’s Breach of Contract and the Covenant of Good Faith and Fair Dealing Claims Doe alleges that the Tobin and Dempf defendants breached the contract by failing to issue the $375,000 settlement payment by March 29, 2023. Under the settlement agreement, the “releases” were required to issue the $375,000 settlement to Doe within the requisite time period to plaintiff, which amount to March 29, 2023. “Releasees” were defined in the settlement agreement as “the Roman Catholic Diocese of Albany, New York, including its parishes, subsidiaries, agencies, affiliates, and related entitles, its respective present and former employees, clergy, officials, trustees, directors, officers and agents and its insurers.” Therefore, it is clear from the text of the settlement agreement that the Tobin and Dempf defendants were not a party to the settlement agreement. As such, there was no contract between Doe and the Tobin and Dempf defendants, and so Doe cannot establish a claim for breach of contract against them (see Radiation Oncology Servs. of Cent. N.Y., P.C. v Our Lady of Lourdes Mem. Hosp., Inc., 221 AD3d 1324, 1326 [3d Dept 2023]; EDW Drywall Constr., LLC v U.W. Marx, Inc., 186 AD3d 1720, 1722 [3d Dept 2020]). Therefore, Doe’s breach of contract claims must be dismissed. Similarly, because the Tobin and Dempf defendants were not a party to the settlement agreement, Doe cannot enforce the duty of good faith and fair dealing against them, and so Doe’s claims for breach of the covenant of good faith and fair dealing must also be dismissed (see Levine 5 of 11 D B ANY OUN PK AW INDEX NO. 901925-24 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/01/2024 | v Yokell, 258 AD2d 296, 296-297 [1st Dept 1999]; Reels v Dynamics in Play, LLC, 78 Misc 3d 1217[A], *9 [Sup Ct, Kings County 2023]). c. Doe’s Promissory Estoppel Claims “To establish a viable cause of action sounding in promissory estoppel, the aggrieved party must allege (1) a clear and unambiguous promise, (2) reasonable and foreseeable reliance by the party to whom the promise is made, and (3) an injury sustained in reliance on the promise” (Villnave Constr. Servs., Inc. v Crossgates Mall Gen. Co. Newco, LLC, 201 AD3d 1183, 1186 [3d Dept 2022] [internal quotation marks and citations omitted]; see Roufaiel v Ithaca Coll., 241 AD2d 865, 869 [3d Dept 1997]). Doe alleges that the Tobin and Dempf defendants agreed to pay him the $375,000 settlement in exchange for the release of his claims. However, as shown by the settlement agreement in the CVA action, the Tobin and Dempf defendants made no agreement with Doe to pay him the settlement agreement — the Diocese did. Therefore, Doe has not alleged a clear and unambiguous promise by the Tobin and Dempf defendants (see Fourth Branch Assoc. Mechanicville v Niagara Mohawk Power Corp., 235 AD2d 962, 964 [3d Dept 1997]). Moreover, the alleged promise that was breached is the same allegation underlying Doe’s breach of contract claim, without an allegation of a duty independent of the settlement agreement, making the promissory estoppel claim duplicative (see Coleman & Assoc. Enters., Inc. v Verizon Corporate Servs. Group, Inc., 125 AD3d 520, 521 [1st Dept 2015]). Therefore, Doe’s promissory estoppel claims must be dismissed. d. Doe’s Intentional and Negligent Infliction of Emotional Distress Claims To establish a claim for intentional infliction of emotional distress, a plaintiff must prove that a defendant’s “conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable 6 of 11 D B ANY OUN PK AW INDEX NO. 901925-24 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/01/2024 in a civilized community” (Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983]; accord Gray v Schenectady City School Dist., 86 AD3d 771, 772 [3d Dept 2011]). Doe alleges that the Tobin and Dempf defendants falsely stated that the Diocese would have to declare bankruptcy if he did not settle prior to trial, but the Diocese declared bankruptcy anyway. Even liberally construed, these allegations do not meet the “strict standard” required for an intentional infliction of emotional distress claim to survive a motion to dismiss (id; see Doin v Dane, 82 AD3d 1338, 1348 [3d Dept 2011], /v denied: 17 NY3d 713 [2011]). The same is true of Doe’s claims for negligent infliction of emotional distress (see Kenneth S. v Berkshire Farm Ctr, & Servs. for Youth, 36 AD3d 1092, 1093-1094 [3d Dept 2007]). Furthermore, the conduct complained of is within the scope of Doe’s fraud claims, and so the intentional and negligent infliction of emotional distress claims must be dismissed (see Fay v Troy City Sch, Dist., 197 AD3d 1423, 1424 [3d Dept 2021]; Demas v Levitsky, 291 AD2d 653, 660 [3d Dept 2002], Jv dismissed 98 NY2d 728 [2002]). Il. Doe’s Motion to Amend the Complaint “A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading” (CPLR 3025 [b]; see Petry v Gillon, 199 AD3d 1277, 1280 [3d Dept 2021]). In determining whether to grant leave to amend, a court “should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated and whether a reasonable excuse for the delay was offered” (Alter v Quality Choice Healthcare, Inc., 184 AD3d 612, 613 [2d Dept 2010] [internal quotation marks, brackets and citation omitted]; accord 7 of 11 D B ANY OUN PK AW INDEX NO. 901925-24 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/01/2024 Benjamin v 270 Malcolm X Dev., Inc.,214 AD3d 762, 764 [2d Dept 2023]). Doe moves to amend his complaint, asking to add key allegations — specifically, that the Tobin and Dempf defendants not only told Doe “if he did not settle [the CVA action], the Diocese would file for bankruptcy to avoid a jury trial,” but that they also told him “if he did settle [the CVA action,] he would be compensated.” This is significantly different from Doe’s original complaint, which contained the former allegation, but not the latter. The latter allegation significantly alters the substance of the complaint. Doe’s motion is denied. First, the amended complaint attached to the motion failed to “clearly show[ ] the changes or additions to be made to” the complaint, meaning that the motion fails to comply with CPLR 3025 (b), which alone is enough to warrant its dismissal (see Drice v Queens County Dist. Attorney, 136 AD3d 665, 665 [2d Dept 2016]; Fermas v Ampco System Parking, 2016 NY Slip Op 30294 [U], 2016 WL 743777, *3 [Sup Ct, Queens County 2016]). Moreover, Doe does not offer a satisfactory excuse for the failure to plead this absolutely critical allegation in the initial complaint, even though it arises from the same settlement discussions that were addressed by the initial complaint. Nor does Doe explain why this allegation was added only after the Tobin and Dempf defendants moved to dismiss the complaint. Therefore, given this lack of a reasonable explanation and the undue prejudice to the Tobin and Dempf defendants the amendment would cause at this stage of the case, following the filing of their motion to dismiss, the motion to amend the complaint is denied (see Yong Soon Oh v Hua Jin, 124 AD3d 639, 641 [2d Dept 2014]; Alter v Quality Choice Healthcare, Inc., 184 AD3d at 613). Il. The Merson Law Defendants’ Motion to Dismiss The Merson Law defendants argue that the Tobin and Dempf defendants’ counterclaim and third-party action for abuse of process should be dismissed, as the elements for an abuse of process 8 of 11 D B ANY OUN PK AW INDEX NO. 901925-24 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/01/2024 claim are not met. To establish an abuse of process claim, a plaintiff must show “(1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective” (Curiano v Suozzi, 63 NY2d 113, 116 [1984]; see Xiaokang Xu v Xiaoling Shirley He, 147 AD3d 1223, 1224 [3d Dept 2017]). The allegations in the Tobin and Dempf defendants’ third-party complaint recite the facts of the case — that the parties participated in mediation sessions to settle the CVA action, that a settlement was reached and that the Merson Law defendants tried to enforce the settlement as an executory contract in Bankruptcy Court. Even liberally construed, the complaint does not contain allegations that the filing of the instant action by the Merson Law defendants was done with an intent to do harm to the Tobin and Dempf defendants without excuse or justification (see Silberman v Flaum, 225 AD2d 985, 985-986 [3d Dept 1996]; Key Bank of N. N.Y. v Lake Placid Co., 103 AD2d 19, 26-27 [3d Dept 1984], appeal dismissed 64 NY2d 644 [1984]), and so the Merson Law defendants’ motion to dismiss the abuse of process counterclaim/third-party action is granted. IV. The Merson Law Defendants’ Motion for Sanctions The Merson Law defendants move for sanctions against the Tobin and Dempf defendants based on the filing of their abuse of process counterclaim and third-party action, arguing that these filings were frivolous. “The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court . . . costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees[ Jresulting from frivolous conduct” (22 NYCRR 130-1.1 [a]). Conduct is frivolous, in relevant part, if “it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” or if “it is undertaken primarily to delay or prolong the resolution of the litigation” (22 NYCRR 130-1.1 [c] [2]). “In determining whether the conduct undertaken was frivolous, the 9 of 11 D B ANY OUN PK AW INDEX NO. 901925-24 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/01/2024 { court shall consider, among other issues[,] the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party” (id.). Nothing in the record indicates that the Tobin and Dempf defendants lacked a good faith basis upon which to bring their abuse of process claim, or that the counterclaim and third-party action were not supported by a reasonable argument in law, despite their dismissal here. Furthermore, the email correspondence attached to the motion does not show that the Tobin and Dempf defendants were attempting to delay or prolong the resolution of the litigation; it was merely a query to the Court regarding scheduling. As the challenged conduct is not frivolous, the Merson Law defendants’ motion for sanctions is denied (see Tso-Horiuchi v Horiuchi, 122 AD3d 918, 918 [2d Dept 2014]; Dank v Sears Holding Mgt. Corp., 69 AD3d 557, 558 [2d Dept 2010]). Any remaining arguments not specifically addressed herein have been considered and found to be unpersuasive or need not be reached in light of this determination. Accordingly, it is hereby ORDERED that the Tobin and Dempf defendants’ motion to dismiss the complaint is granted; and it is further ORDERED that Doe’s motion for leave to amend the complaint is denied; and it is further ORDERED that the Merson Law defendants’ motion to dismiss the abuse of process counterclaim/third-party action is granted; and it is further ORDERED that the Merson Law defendants’ motion for sanctions is denied. This memorandum constitutes the Decision and Order of the Court. The original Decision and Order is being uploaded to the NYSCEF system for filing and entry by the Albany County 10 10 of 11 D B ANY OUN PK AW INDEX NO. 901925-24 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 07/01/2024 Clerk. The signing of this Decision and Order and uploading to the NYSCEF system shall not constitute filing, entry, service, or notice of entry under CPLR 2220 and § 202.5-b(h)(2) of the Uniform Rules for the New York State Trial Courts. Counsel is not relieved from the applicable provisions of those rules with respect to service and notice of entry of the Decision and Order. SO ORDERED. ENTER. Dated: June 28, 2024 Albany, New York we Seo BON. DANIEL C. LYNE JS.C. Papers considered: 1 Notice of Motion to Strike/Dismiss, dated April 2, 2024; 2 Affirmation in Support of Motion to Strike/Dismiss of Christopher J. Martin, Esq., dated April 2, 2024; together with Exhibits 1 — 4; 3 Affirmation in Opposition to Motion to Strike/Dismiss of Michael L. Costello, Esq., dated May 9, 2024, together with Exhibits A — I; 4. Affirmation in Further Support of Motion to Strike/Dismiss of Jonathan P. Whitcomb, Esq., dated May 13, 2024; 5 Notice of Motion for Sanctions, dated May 10, 2024; 6 Affirmation in Support of Motion for Sanctions of Jordan K. Merson, Esq., dated May 10, 2024, together with Exhibits 1 — 7; 7 Affirmation in Opposition to Motion for Sanctions of Michael L. Costello, Esq., dated May 22, 2024, together with Exhibits A — B; 8 Affirmation in Further Support of Motion for Sanctions of Jordan K. Merson, Esq., dated June 4, 2024; 9 Notice of Motion to Dismiss, dated May 15, 2024; 10. Affirmation in Support of Motion to Dismiss of Samantha M. McDermott, Esq., dated May 15, 2024, together with Exhibits A — D; 11. Affirmation in Opposition to Motion to Dismiss of Jordan K. Merson, Esq., dated June 4, 2024, together with Exhibits 1 — 11; 12. Notice of Cross-Motion for Sanctions, dated June 4, 2024; 13. Affirmation in Support of Cross-Motion for Sanctions of Jordan K. Merson, dated June 4, 2024, together with Exhibits 1 — 11; 14. Affirmations in Opposition to Cross-Motions for Sanctions of Tara J. Sciortino, Esq. and Michael L. Costello, Esq., both dated June 7, 2024. 11 11 of 11