                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 29, 2015                   520529
________________________________

DEBRA JAMES,
                    Appellant,
     v                                      MEMORANDUM AND ORDER

BRUCE FLYNN,
                    Respondent.
________________________________


Calendar Date:   September 9, 2015

Before:   Peters, P.J., Lahtinen, Garry and Rose, JJ.

                             __________


     Mark Schneider, Plattsburgh, for appellant.

     Kevin McKain, Rochester, for respondent.

                             __________


Garry, J.

      Appeal from an amended order of the Supreme Court (Ellis,
J.), entered January 30, 2015 in Clinton County, which, among
other things, granted defendant's motion for summary judgment
dismissing the complaint.

      In July 2009, defendant allegedly began stalking plaintiff,
with whom he had previously had a romantic relationship. In
October 2009, he entered plaintiff's home and threatened her with
a firearm. He was arrested and charged with various crimes, and
later pleaded guilty to burglary in the second degree and
criminal use of a firearm in the second degree (People v Flynn,
92 AD3d 1148 [2012], lv denied 19 NY3d 996 [2012]). Defendant
subsequently commenced two federal actions alleging various
causes of action against plaintiff and others arising out of his
arrest. Both actions were dismissed. In September 2012,
plaintiff commenced this action for intentional infliction of
                              -2-                520529

emotional distress, abuse of process and malicious prosecution.
Following discovery, plaintiff filed a note of issue and
certificate of readiness for trial in July 2014. As relevant
here, defendant then moved for summary judgment dismissing the
complaint, and plaintiff cross-moved to amend the complaint to
add causes of action for negligent infliction of emotional
distress and reckless infliction of emotional distress. Supreme
Court granted defendant's motion and denied plaintiff's cross
motion. Plaintiff appeals.

      One of the two causes of action in plaintiff's complaint,
entitled "Abuse of Process and Malicious Prosecution," alleged
that the federal actions that defendant had filed against
plaintiff were frivolous and lacked any factual or legal basis,
and that defendant had filed them for the improper purpose of
causing plaintiff to suffer emotional distress and incur legal
expenses. Supreme Court dismissed this cause of action in its
entirety upon finding that its allegations, even if true, did not
constitute abuse of process. Plaintiff contends that the cause
of action should not have been dismissed to the extent that it
alleges malicious prosecution. We agree, and reverse as to the
dismissal of the malicious prosecution cause of action.

      To prove malicious prosecution, plaintiff will be required
to establish that defendant acted with malice in commencing the
actions against her, that the actions were entirely lacking in
probable cause, that they terminated in plaintiff's favor and
that she suffered special injury (see Perryman v Village of
Saranac Lake, 41 AD3d 1080, 1081 [2007]; Black v Green Harbour
Homeowners' Assn., Inc., 37 AD3d 1013, 1014 [2007]). Upon the
summary judgment motion, defendant bore the burden of making a
prima facie showing that plaintiff will be unable to establish at
least one of these elements (see Hoyt v City of New York, 284
AD2d 501, 502 [2001], lv denied 97 NY2d 603 [2001]). Defendant
failed to do so; his arguments included no assertions related to
malicious prosecution, but were confined solely to abuse of
process. Denial of defendant's motion as to this cause of action
was thus required, without regard to the sufficiency of
plaintiff's opposition to the motion (see generally Winegrad v
New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Repeti v
McDonald's Corp., 49 AD3d 1089, 1090 [2008]).
                              -3-                520529

      Supreme Court did not abuse its discretion in denying
plaintiff's cross motion to amend the complaint. Initially, her
cause of action for intentional infliction of emotional distress
recited that it was based upon "[defendant's] criminal actions
against [plaintiff]." Defendant correctly argued that this cause
of action was subject to a one-year statute of limitations, and
was thus time-barred (see CPLR 215 [3]; Yong Wen Mo v Gee Ming
Chan, 17 AD3d 356, 358 [2005]). In response to this aspect of
defendant's motion, plaintiff sought to amend her complaint by
replacing the time-barred cause of action with claims for
reckless infliction of emotional distress and negligent
infliction of emotional distress. Although leave to amend a
pleading is freely granted in most circumstances, for the reasons
below, we find that these proposed amendments lacked merit.

      First, reckless conduct is encompassed within the tort of
intentional infliction of emotional distress and does not
constitute a separate and distinct cause of action (see Freihofer
v Hearst Corp., 65 NY2d 135, 143 [1985]; Dana v Oak Park Marina,
230 AD2d 204, 209 [1997]; Restatement [Second] of Torts § 46; see
also Olmstead v Federated Dept. Stores, 208 AD2d 979, 981 [1994],
lv denied 85 NY2d 811 [1995]). Thus, the proposed cause of
action for reckless infliction of emotional distress is also
subject to a one-year statute of limitations and is similarly
time-barred (see Dana v Oak Park Marina, 230 AD2d at 210). As
for negligent infliction of emotional distress, plaintiff has not
alleged that defendant acted negligently. Her allegations that
defendant stalked her, entered her home, and threatened her with
a weapon simply cannot support a cause of action for negligent
infliction of emotional distress (see Santana v Leith, 117 AD3d
711, 712 [2014]). Finally, plaintiff offered no satisfactory
excuse for her delay in seeking the amendments, and Supreme Court
noted the resulting prejudice (see Gersten-Hillman Agency, Inc. v
Heyman, 68 AD3d 1284, 1289 [2009]; Ciarelli v Lynch, 46 AD3d
1039, 1040 [2007]). Accordingly, we find no abuse of discretion
in the denial of the cross motion (see Sadler v Town of Hurley,
304 AD2d 930, 931 [2003]).


     Peters, P.J., Lahtinen and Rose, JJ., concur.
                              -4-                  520529

      ORDERED that the amended order is modified, on the law,
without costs, by reversing so much thereof as granted
defendant's motion for summary judgment dismissing the malicious
prosecution cause of action; motion denied to that extent; and,
as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
