On April 20, 2023, Justice Borrok of the New York County Commercial Division issued a decision in Atlantic Specialty Ins. Co. v. Landmark Unlimited, Inc., 2023 NY Slip Op. 31308(U), declining to dismiss a claim for prima facie tort, explaining:
Prima facie tort requires (i) the intentional infliction of harm, (ii) which results in special damages, (iii) without any excuse or justification, (iv) by an act or series of acts which would otherwise be lawful. NIBONY alleges that (i) the Landmark Defendants’ position on forged signatures constitutes criminal insurance fraud, (ii) they made the false statement without any excuse or justification, (iii) they intend to cause NIBONY injuries and damages, and (iv) NIBONY suffers special damages in having to defend this third party action. It does not matter that the alleged false statement was only made in the Landmark Defendants’ third party complaint. The lawsuit is not retaliatory. If it is true that the Landmark Defendants position that their signatures were forged and unauthorized is false and if their lawsuit against NIBONY is fabricated, NIBONY would be entitled to special damages in having to defend this lawsuit. It is very concerning (given their position) that the Landmark Defendants have not sued Mr. Napolitano, their accountant, who is alleged to have represented due execution and delivery of the GIA.
(Internal quotations and citations omitted).