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. L3302-13.

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).

NOT FOR PUBLICATION WITHOUT THE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.
2 A-1493-14T3

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 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).
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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).]
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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, 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 
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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.
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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 
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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.