                         NOT FOR PUBLICATION WITHOUT THE
                       APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1493-14T3

MARK OLYNYK,

        Plaintiff-Appellant,

v.

ROSA RICKETT, ESQ., THE LEVINE
LAW FIRM, LLC, a limited
liability company, and ELFANT
RICKETT LAW FIRM,

        Defendants-Respondents.


              Argued October 6, 2016 – Decided May 31, 2017

              Before    Judges    Fuentes,    Carroll    and   Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Morris County, Docket No. L-
              3302-13.

              Richard L. Ravin argued the cause for
              appellant   (Hartman   &    Winnicki, P.C.,
              attorneys; Mr. Ravin, of counsel and on the
              brief; Jon E. Linder, on the brief).

              Michael P. Chipko argued the cause for
              respondents Rosa Rickett, Esq. and Elfant
              Rickett Law Firm (Wilson, Elser, Moskowitz,
              Edelman & Dicker LLP, attorneys; Maxwell L.
              Billek, of counsel; Brian S. Gatens, of
              counsel and on the brief).
               Meredith Kaplan Stoma argued      the cause for
               respondent the Levine Law          Firm (Morgan
               Melhuish Abrutyn, attorneys;      Ms. Stoma, of
               counsel; Petar Kuridza, on the    brief).

PER CURIAM

       Plaintiff Mark Olynyk filed a civil action against defendants

Rosa Rickett, Esq., The Levine Law Firm, L.L.C., and Elfant Rickett

Law    Firm,    alleging   malicious   prosecution,   malicious   abuse    of

process,       and   intentional    infliction   of   emotional   distress.

Defendants represented plaintiff's former wife, Anna Olynyk, in a

matrimonial action that ended in a final judgment of divorce.              In

lieu of filing responsive pleadings, defendants moved to dismiss

plaintiff's complaint pursuant to Rule 4:6-2(e), arguing plaintiff

failed to state a claim upon which relief can be granted.

       Plaintiff opposed defendants' motion and filed a cross-motion

to amend his complaint to substitute malicious prosecution with

malicious use of process.           Although defendants did not oppose

plaintiff's cross-motion, they argued that even as amended, the

complaint failed to state a viable cause of action as a matter of

law.    Judge Rosemary E. Ramsay heard oral argument on the motions

on October 10, 2014. After considering the parties' presentations,

Judge    Ramsay      granted   defendants'   motion   and   dismissed     the

complaint for failure to state a claim upon which relief can be

granted.       See Rule 4:6-2(e).


                                       2                            A-1493-14T3
      On appeal, plaintiff argues Judge Ramsay erred by: (1) denying

his   cross-motion   to   amend   the   complaint;   and   (2)   granting

defendants' motion to dismiss the complaint with prejudice.              We

review a decision to dismiss a complaint as a matter of law under

Rule 4:6-2(e) de novo, using the same standards relied on by the

motion judge.   Assuming arguendo that the facts stated within the

four corners of the complaint are true, and granting plaintiff the

benefit of all rational inferences that can be drawn from such

facts, we must determine:

           whether a cause of action is "suggested" by
           the facts.   . . . In reviewing a complaint
           dismissed under Rule 4:6-2(e) our inquiry is
           limited to examining the legal sufficiency of
           the facts alleged on the face of the
           complaint. . . . However, a reviewing court
           "searches the complaint in depth and with
           liberality to ascertain whether the fundament
           of a cause of action may be gleaned even from
           an obscure statement of claim, opportunity
           being given to amend if necessary." . . . At
           this preliminary stage of the litigation the
           Court is not concerned with the ability of
           plaintiffs to prove the allegation contained
           in the complaint.    . . . For purposes of
           analysis plaintiffs are entitled to every
           reasonable inference of fact.     . . . The
           examination of a complaint's allegations of
           fact required by the aforestated principles
           should be one that is at once painstaking and
           undertaken with a generous and hospitable
           approach.

           [Printing     Mart-Morristown   v.    Sharp
           Electronics Corp., 116 N.J. 739, 746 (1989)
           (citations omitted).]


                                    3                             A-1493-14T3
    In deciding defendants' motion, Judge Ramsay applied the

foregoing standard and accepted as true the following allegations

in plaintiff's complaint:

         In or about December 2010, plaintiff's former
         wife, Anna Olynyk, retained defendants to
         represent her in the divorce proceedings.

         Sometime in July 2011, police officers from
         the Pompton Plains Police Department arrived
         at plaintiff's home in response to a complaint
         made by Anna Olynyk involving a disputed claim
         over a lock box containing cash.

         While the police were at plaintiff's home,
         defendant Rickett contacted an officer at the
         scene and demanded that he arrest plaintiff
         for theft. Defendant lied when she told the
         officer that plaintiff had stolen property
         belonging to Anna Olynyk. The police officer
         did not find probable cause to arrest
         plaintiff, and the action was terminated in
         plaintiff's favor.

         When this incident was brought to the
         attention of the Family Part judge who
         presided over the matrimonial action, Rickett
         made two knowing written misrepresentations in
         which she denied requesting the police officer
         to arrest plaintiff.    Plaintiff engaged the
         services of a private investigator to follow
         up with the officer who had been at the scene.

         Defendants engaged in a pattern of "lies and
         [a] lack of candor" with the purpose of
         protracting the litigation and extracting
         legal fees from plaintiff.        Defendants
         continued this pattern of lies to the court
         so plaintiff would be required to maintain a
         litigation fund. Defendants used their "lies
         and lack of candor to get the [c]ourt to
         approve approximately $112,000.00 in funds


                               4                          A-1493-14T3
             from [p]laintiff to pay for Anna[] [Olynyk's]
             litigation."

      From these facts, Judge Ramsay found plaintiff had not made

out a cognizable claim of abuse of process, as that common law

tort is defined and discussed by this court in Tedards v. Auty,

232 N.J. Super. 541, 549–50 (App. Div. 1989) (citations omitted).

A brief description of the salient facts in Tedards is necessary

to provide context to our discussion.              The plaintiff in Tedards

was arrested in his home by police officers executing an ex parte

judicial order obtained by his former wife.                Id. at 547.     The

record      showed   the    plaintiff's     former   wife's   attorney    (the

defendant) knowingly submitted a certification containing material

misstatements of fact, and subsequently used the judicial order

obtained therefrom to coerce the plaintiff into paying his former

wife's legal fees, as well as the "full amount of her demands[.]"

Id. at 548.

      The facts in Tedards stand in sharp contrast to what plaintiff

alleges here.        Plaintiff was not arrested or even detained when

the police responded to his former wife's call about the lockbox

and   the    cash    it   allegedly   contained.     The   police   officers'

investigatory response did not satisfy the elements of either

malicious use or malicious abuse of process.            See id. at 549–50.




                                        5                             A-1493-14T3
     There is also no basis to find defendants liable for the tort

of malicious prosecution.             As defined by the Supreme Court in

LoBiondo v. Schwartz, 199 N.J. 62 (2009), "[m]alicious prosecution

requires the plaintiff to prove four elements: (1) a criminal

action was instituted by [the] defendant[;] . . . (2) the action

was motivated by malice; (3) there was an absence of probable

cause to prosecute; and (4) the action was terminated favorably

to the plaintiff."     Id. at 90 (citing Lind v. Schmid, 67 N.J. 255,

262 (1975)).     Here, the record is undisputed that defendants did

not, at any time, institute criminal process against plaintiff.

     Plaintiff      alleges    that   defendants     engaged    in   a   campaign

driven by mendacity and obfuscation to deliberately prolong the

divorce proceedings and thereby support their claim for counsel

fees.   Our Supreme Court has long recognized that appellate courts

must accord deference to the Family Part's factual findings, in

recognition    of   the    Family     Part's     "'special   jurisdiction      and

expertise in family matters.'"          Thieme v. Aucoin-Thieme, 227 N.J.

269, 282–83 (2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413

(1998)).    We presume the Family Part judge who presided over

plaintiff's      matrimonial        proceedings       had     the     expertise,

responsibility,      and      authority     to    manage     this    contentious

litigation.    Furthermore, as Judge Ramsay aptly noted, claims of

attorney misconduct predicated on violations of the Rules of

                                        6                                 A-1493-14T3
Professional Conduct do not give rise to private tort causes of

action.   Green v. Morgan Properties, 215 N.J. 431, 458 (2013); see

also Brundage v. Estate of Carambio, 195 N.J. 575, 602–03 (2008).

      Finally, we address plaintiff's claim under the tort of

intentional infliction of emotional distress.

             [T]o make out a prima facie case of
             intentional infliction of emotional distress,
             [the] plaintiff must show that: (1) [the]
             defendant acted intentionally; (2) [the]
             defendant's conduct was "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 in a civilized community;" (3)
             [the] defendant's actions proximately caused
             him emotional distress; and (4) the emotional
             distress was "so severe that no reasonable
             [person] could be expected to endure it."

             [Segal v. Lynch, 413 N.J. Super. 171, 191
             (App. Div.) (quoting Buckley v. Trenton Saving
             Fund Soc., 111 N.J. 355, 366 (1988)), certif.
             denied, 203 N.J. 96 (2010).]

      Applying our standard of review to the allegations in the
complaint, we conclude plaintiff did not make out a prima facie
case of intentional infliction of emotional distress.           The acts
plaintiff attributes to defendants do not come close to describing
the   type   of   "atrocious"   and   "utterly   intolerable"   behavior
required to establish a cognizable cause of action under this
tort.
      Affirmed.




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