Samtani v. Cherukuri et al

Filing 29

ORDER granting 28 Motion for Reconsideration re 26 Order on Motion to Dismiss. The Court overlooked that the complaint alleges that this Court has diversity jurisdiction over the plaintiff's state law claims. The Court withdraws the por tion of it's May 11, 2012 Order declining to exercise supplemental jurisdiction over the plaintiff's state law claims, and the plaintiff's state law claims are hereby reinstated. The defendants' motion to dismiss the plaintiff's claim for intentional infliction of emotional distress is denied. The Clerk of Court is directed to vacate 27 the judgment previously entered in this action. Ordered by Chief Judge Carol Bagley Amon on 5/18/2012. (Turner-Dodge, Lee)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SUNIL SAMTANI
NOT FOR PUBLICATION
MEMORANDUM & ORDER
11-CV-2159 (CBA) (RER)

Plaintiff,
-againstRAMAKRISHNA CHERUKURI, Individually and in
his official capacity as Chief Executive Officer of
New York Frangrance, Inc. and NEW YORK
FRAGRANCE, INC.,
Defendants.
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AMON, Chief United States District Judge:

The plaintiff has moved for reconsideration of the Court’s May 11, 2012, order (“May 11
order”) dismissing the plaintiff’s complaint in its entirety. The plaintiff correctly points out that
the Court erred in overlooking that the complaint alleges diversity jurisdiction under 28 U.S.C. §
1332 as a basis for this Court’s jurisdiction over the plaintiff’s state law claims. The Court
accordingly withdraws the portion of its May 11 order declining to exercise supplemental federal
jurisdiction over those claims.
The defendants have not moved to dismiss the plaintiff’s state law claim for malicious
prosecution. Accordingly, the Court hereby reinstates that claim.
The defendants have moved to dismiss the plaintiff’s state law claim for intentional
infliction of emotional distress (“IIED”) as time-barred. The statute of limitations in New York
for a claim of IIED is one year from the date of the allegedly outrageous acts. N.Y. C.P.L.R.
§ 215(3); Young v. Suffolk County, 705 F. Supp. 2d 183, 212 (E.D.N.Y. 2010). The basis of the
plaintiff’s IIED claim is that the defendants intentionally caused him emotional distress by
providing the District Attorney with false and/or materially incomplete information in order to

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subject the plaintiff to arrest, prosecution, and ultimately a criminal conviction and incarceration.
The defendants argue that the only affirmative acts alleged in the complaint that could provide a
basis for this claim are that Cherukuri provided the District Attorney with false and/or materially
incomplete information, and that he testified to the same information before the grand jury,
thereby leading to the plaintiff’s arrest. Thus, the defendants argue that the plaintiff’s IIED
claim accrued either on April 23, 2009, the date Cherukuri is alleged to have falsely testified
before the grand jury, or at the very latest on August 13, 2009, the date of the plaintiff’s arrest.
Under this calculation, the limitations period for the plaintiff’s IIED claim expired no later than
August 13, 2010. The plaintiff did not file his complaint until May 4, 2011.
The plaintiff argues that the complaint plausibly alleges a continuing tort by the
defendants that did not end until the charges against the plaintiff were dismissed on August 25,
2010. When an alleged tort is part of an ongoing pattern of conduct, New York’s continuing tort
doctrine “‘permits a plaintiff to rely on wrongful conduct occurring more than one year prior to
commencement of the action, so long as the final actionable event occurred within one year of
the suit.’” Manliguez v. Joseph, 226 F. Supp. 2d 377, 386 (E.D.N.Y. 2002) (quoting Shannon v.
MTA Metro-North R.R., 269 A.D.2d 218 (2000)). “[F]or the statute of limitations to be tolled
under the theory of continuing wrongs, ‘the acts within the statute of limitations must be
sufficient to make out a claim for intentional infliction of emotional distress, independent of
those acts that are part of the offending course of conduct but fall outside the time bar.’” Gorton
v. Gettel, 2007 WL 2154193, at *3 (S.D.N.Y. 2007) (quoting Mariani v. Con. Edison Co. of
N.Y., Inc., 982 F. Supp. 267, 273-74 (S.D.N.Y. 1997)); see Russo-Lubrano v. Brooklyn Fed.
Sav. Bank, 2007 WL 121431, at *6 (E.D.N.Y. 2007).

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The plaintiff argues that the complaint plausibly alleges a continuing tort because it
describes a pattern of lies and material omissions by the defendants that continued throughout the
entire course of the prosecution. In essence, the plaintiff argues that the defendants intentionally
caused the plaintiff emotional distress by participating in the continued unfounded prosecution of
the plaintiff, or at least by deliberately continuing to withhold material information. Thus,
according to the plaintiff, the statute of limitations did not begin to run until the charges were
dropped on August 25, 2010, making the plaintiff’s complaint timely.
This argument is persuasive. The complaint alleges that Cherukuri continued to give
false or at least misleading testimony to the District Attorney regarding the nature of his business
relationship with the plaintiff throughout the continued prosecution. (Compl. ¶¶ 39-40.)
Although the complaint does not describe any specific conversations between Cherukuri and the
District Attorney following the plaintiff’s arrest, it is reasonable to infer at the motion to dismiss
stage that additional conversations occurred, particularly in light of the fact that the prosecution
of the plaintiff on these charges continued for fifteen (15) months. (Id. ¶ 42.) Accordingly, the
Court finds that at this stage of litigation the complaint sufficiently alleges a continuing tort that
did not end until the District Attorney dismissed the charges against the plaintiff. See LlerandoPhipps v. City of N.Y., 390 F. Supp. 2d 372, 384 (S.D.N.Y. 2005) (holding that statute of
limitations for IIED claim against police officers alleged to have falsified evidence against
plaintiff ran from date charges were dropped because “[w]hat took place between [the] arrest, the
grand jury adjournment, and the time the charges were dropped remain[ed] unclear” and the “last
actionable act” was “the continuation of the prosecution despite the lack of probable cause”).
Using August 25, 2010 as the accrual date for the plaintiff’s IIED claim, the claim is timely.

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Accordingly, the defendants’ motion to dismiss this claim is denied, and the Court hereby
reinstates it.
CONCLUSION
The plaintiff’s motion for reconsideration is granted. The defendants’ motion to dismiss
the plaintiff’s claim for intentional infliction of emotional distress as time-barred is denied. The
plaintiff’s state law claims for malicious prosecution and intentional infliction of emotional
distress are reinstated. The Clerk of Court is directed to vacate the judgment that was entered in
this action on May 11, 2012.

SO ORDERED.
Dated: Brooklyn, New York
May 18, 2012

/s/
Carol Bagley Amon
Chief United States District Judge

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