Napoli v Bern

Napoli v Bern

Opinion

Carmen Victoria St. George, J.

In this action, plaintiff Marie Kaiser Napoli sues her husband's former law partner Marc Jay Bern; Bern's attorney, Clifford S. Robert; a publicist who worked with Mr. Bern and Mr. Robert, Brian Brick; and the company for which Mr. Brick worked, The Parkside Group, LLC. She asserts causes of action for 1) defamation, 2) defamation per se, 3) intentional infliction of emotional distress, 4) negligent infliction of emotional distress, 5) abuse of process and malicious prosecution, 6) breach of fiduciary duty, and 7) prima facie tort. The complaint seeks $160,000,000 in compensatory damages and $340,000,000 in punitive damages, for a total of $500,000,000.

Plaintiff commenced this action by filing [*2]  her summons and complaint on November 5, 2015. She filed an amended complaint on November 17, 2015, and a corrected amended summons on November 20, 2015. Plaintiff served defendants with the amended summons and complaint on March 1, 2016. On May 9, 2016, defendants moved, jointly, to dismiss the lawsuit (motion sequence number 004). On June 27, 2016 plaintiff cross-moved to serve a second amended complaint or, alternatively, to obtain additional time to serve the original amended complaint. In November 2017, the parties stipulated to withdraw this motion and allow plaintiff to file a third amended by December 14, 2017. In addition, the stipulation set up a briefing schedule for a new motion, sequence number 006, and to allow briefing on the issue of collateral estoppel raised in motion sequence number 004 as well as on plaintiff's two additional causes of action. Motion sequence 006 was submitted to the Court after oral argument around May 16, 2018.

Despite the age of this case, before the Court is defendants' joint pre-answer motion to dismiss the complaint. The 190-paragraph complaint is partly devoted to describing Mr. Bern's alleged extra-marital relationships and his treatment [*3]  of his children, as well as non-party Vanessa Dennis' purported sexual addiction and malicious intent to destroy Ms. Napoli's relationship with her husband Paul Napoli. To the extent possible, the Court narrows its focus to the relevant allegations and the legal issues the parties dispute. Moreover, as this is a pre-answer motion to dismiss the Court accepts plaintiff's allegations as true for the purposes of this motion, gives plaintiff "the benefit of all favorable inferences," and dismisses those claims for which there is no legal basis (Morgan Stanley Mtge. Loan Trust 2006-13ARX v. Morgan Stanley Mtge. Capital Holdings LLC, 143 AD3d 1, 8, 36 N.Y.S.3d 458 [1st Dept 2016]). For the reasons below, the Court grants the motion to the extent that it seeks to dismiss the claims for negligent infliction of emotional distress, intentional infliction of emotional distress, malicious prosecution, abuse of process and breach of fiduciary duty. It denies the motion insofar as it seeks to dismiss plaintiff's  [**2]  defamation, defamation per se, and prima facie tort causes of action.¹

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