SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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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 Judge s 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. Ravi n, 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; Bri an S. Gatens, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court
. " A lthough 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

- 3.2 A

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- 14T3 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 ci vil action against defendants

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

Law Firm , alleging malicious prosecution, malicious abuse of
process, and intentional inf liction 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 s tate a claim up on which relief can be granted.

Plaintiff opposed defendants ' motion and filed a cross - mo tion

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 ' presentation s , 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).3 A

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On appeal, plaintiff argues Judge Ramsay erred by : (1) denying

his cross

- motion to amend t he complaint; and (2) granting

defendants ' motion to d ismiss 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. A ssuming arguendo that the f acts 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. 7 39, 746 (1989) (citations omitted)
. ]4 A

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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 , re tained 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 lo ck 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 p laintiff had stolen property belonging to Anna Olynyk
. The police officer did not find pro bable cause to arrest p laintiff , and the action was terminated in plaintiff's favor.

When this incident was brought to th e attention of the Family Part j udge 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 engage d in a pattern of " lies and [ a ] lack of candor " with the purpose of protracting the litigation and extracting legal fees from p laintiff. 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 funds5 A

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From these facts, Judge Ramsay found plaintiff had not made
out a cognizable claim o f abuse of proc ess, 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. T he 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 attorn ey (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 h er 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 respon ded 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 i d. at 549

– 50
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There is also no basis to find defendant s 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, t he record is undisput ed 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 court s

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 o n violation s of the Rules of7 A

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Professional Conduct do not give rise to private tort cause s 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 mak e 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 [pers on] 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
. T he 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.