Shapiro v Ungar

[*1] Shapiro v Ungar 2006 NY Slip Op 52642(U) [21 Misc 3d 1115(A)] Decided on July 18, 2006 Supreme Court, Columbia County Hummel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 18, 2006
Supreme Court, Columbia County

Joan Shapiro, GERALD SHAPIRO, ILANA SHAPIRO, and ARI SHAPIRO, Plaintiffs,

against

Aine Dougherty Ungar, Defendant.



7453-03



APPEARANCES:

WHITEMAN, OSTERMAN & HANNA, LLP

(Margaret J. Gillis, Esq., of Counsel)

One Commercial Plaza

Albany, New York 12260

For Plaintiffs

DRAKE, SOMMERS, LOEB, TARSHIS,

CATINA & LIBERTH, PLLC

(John W. Furst, Esq., of Counsel)

P.O. Box 1479

Newburgh, New York 12551

For Defendant

Christian F. Hummel, J.

Pending before the Court is a series of motions in this longstanding and acrimonious family dispute regarding the interpretation of a decree made in 1997 in settlement of the Estate of Helen Ungar. The parties own adjacent properties in the Town of Copake. The two properties were formerly one parcel known as Skytop Farm. As a part of the settlement of the Estate of Helen Ungar, Plaintiff Joan Shapiro's mother, the property was subdivided. That subdivision, as well as the other rights and obligations at issue in this proceeding were ordered by a decree of the Columbia County Surrogate dated November 12, 1997. The decree resulted from a stipulated settlement between the parties. As a result of the decree one portion of Skytop Farm, Lot 1, was conveyed to Joan Shapiro and her husband and children. Lot 2 was conveyed to John Ungar, [*2]Joan Shapiro's brother. After John Ungar's death in 1998, Lot 2 was conveyed by deed from his estate to his wife, Aine Dougherty Ungar, the Defendant in this action. Defendant took this conveyance subject to any and all requirements, covenants, easements, rights and restrictions of record, including those set forth in the Surrogate's Court decree and subsequent decisions.

A March 2, 1998 decision resolved a question which arose between the parties after the 1997 decree concerning the boundaries of the visual easement.As a result of the decision, the boundaries were drawn on a survey map, and an "existing farm vehicle and farm equipment thoroughfare" ran across the visual easement. An August 4, 1998 decision also provided that the "existing farm vehicles and equipment" could travel back and forth across the thoroughfare.

This action was commenced on September 12, 2003. Issue was joined on May 28, 2004. Plaintiffs allege that Defendant violated their visual easement by planting trees and erecting a fence within the visual easement, preventing access to the pond by a locked gate, removing trees from the Spruce Grove, as well as improperly driving through the thoroughfare. Plaintiffs filed a Notice of Pendency against Defendant's property on July 13, 2004. On January 11, 2005, after the trees and fencing were removed, Defendant filed a motion for summary judgment and removal of the notice of pendency. By decision and order of this Court, summary judgment was denied as questions of fact existed regarding the use of the thoroughfare by non-farm vehicles, and the request to cancel the notice of pendency was denied. On October 7, 2005, Defendant filed a Second Amended Verified Answer, which, inter alia, added a counterclaim for a declaratory judgment acknowledging that Defendant had a twenty foot wide unobstructed right of way over what is known between the parties as the "back-road" easement. Plaintiffs filed another motion to dismiss and for leave to amend their complaint on December 14, 2005.

In their motion to dismiss, Plaintiffs seek to dismiss the allegations in Defendant's seventh counterclaim in her Second Amended Verified Answer with Counterclaims which they assert purports to set forth a cause of action for the intentional infliction of emotional distress, dismiss paragraphs sixty-six (66) and sixty-eight (68) in said seventh counterclaim, dismiss Defendant's claim for attorneys fees pursuant to the Road Maintenance Agreement, and to dismiss Defendant's eleventh affirmative defense (which deals with cancellation of the notice of pendency), and to dismiss the allegations in paragraphs 15 and 16 of Defendant's Amended Verified Answer with Counterclaims.Plaintiffs also seek leave to amend their complaint pursuant to CPLR 3025 to add a cause of action under RPAPL Article 15, as Defendant's Second Amended Verified Answer with Counterclaims pled a cause of action for the same.

Plaintiffs assert that Defendant has failed to adequately set forth a cause of action for the intentional infliction of emotional distress, which requires more than the allegations set forth in the counterclaim. Defendant seeks attorneys fees in reference to her attempts to enforce the scope of her back road easement. Further, in reference to the Road Maintenance Agreement under which she seeks attorneys fees, Plaintiffs contend that Defendant has failed to allege any violation of that agreement, and she is seeking attorney fee reimbursement for her attempts to enforce the use of the easement, not the maintenance of the same. Plaintiffs further allege that as to the Eleventh Affirmative Defense, in which Defendant alleges that the Notice of Pendency should be cancelled as any alleged violations were rectified prior to its filing, this Court, in determining the previous motion to dismiss, specifically found that the violations had not all been rectified and questions of fact remained which warranted the continuation of the Notice of [*3]Pendency.

Defendant opposes the motion, asserting that no discovery has been done regarding the Second Amended Verified Answer with Counterclaims, and as such, any motion to dismiss is premature. Regarding the dismissal of the claims which sound in the intentional infliction of emotional distress, Defendant submits that she has, in her answer and with the affidavit in opposition, set forth sufficient allegations at this point to survive a motion to dismiss.

To set forth a cause of action for the intentional infliction of emotional distress, plaintiff must allege extreme and outrageous conduct, such that this behavior goes beyond the bounds of decency, and which would be regarded as atrocious and utterly intolerable in a civilized society (see, Herlihy v. Metropolitan Museum of Art, 214 AD2d 250 [1st Dept., 1995]). Three additional elements must also be plead in addition to the extreme and outrageous conduct, to wit: the intentional or reckless nature of the conduct, causal relationship between the conduct and the resulting harm, and severe emotional distress (see, Howell v. New York Post Co., 81 NY2d 115). The element of outrageous conduct is "rigorous, and difficult to satisfy" and its purpose is to filter out complaints and assure that the claim of severe emotional distress is genuine (see, Howell, supra, at 122).

Plaintiffs' motion to dismiss the claims sounding in the intentional infliction of emotional distress must be granted. Reading the answer in the light most favorable to Defendant, as the Court must when determining a motion to dismiss, the Court finds it insufficient to establish a prima facie cause of action for the intentional infliction of emotional distress. Defendant promises further examples of the outrageous conduct of Plaintiffs, but in her affidavit and her answer she can site only to Plaintiffs' "disingenuous conduct and uncooperative attitude" and the Plaintiffs' "campaign of harassment and malicious remarks."While Plaintiffs' conduct, if proven true after trial, would be inappropriate, in the context of this acrimonious litigation, it would not be so atrocious as to shock the conscience of the civilized world. Contrary to Defendant's assertions, Plaintiffs have repeatedly requested discovery as to the allegations and damages which would support this claim, and Defendant has failed to specify the same. Given that discovery has in fact been undertaken as to this issue, and Defendant's opposition papers set forth insufficient evidence to support a claim for the intentional infliction of emotional distress, that claim is dismissed.

Defendant's eleventh affirmative defense should remain in the answer. The Court has previously determined that questions of fact exist as the use of the property, and as such, a lis pendens is proper. Contrary to Plaintiffs assertion in the motion to dismiss, the Court's previous determination did not resolve any issue either way, merely confirmed that an issue existed. The same is true with respect to paragraphs fifteen and sixteen, and the motion to dismiss them from the answer is denied.

Plaintiffs' motion is also granted with respect to Defendant's claim for attorneys fees under the Road Maintenance Agreement. A clear reading of the agreement reveals that it deals solely with the proper upkeep of the road, giving either party a right to claim attorneys fees if in fact they had to sue to enforce issues relating only to the maintenance, repair and upkeep of the road.

Plaintiffs' motion regarding the dismissal of the paragraphs 66 and 68 from the second amended answer is denied. Clearly questions of fact exist as to both these issues. Defendant [*4]would like to produce a surveyor to determine if in fact any of the stakes supporting the newly planted saplings fall within the twenty foot easement, as there is no other way to measure this distance accurately. Further, Defendant has produced a letter in which Plaintiffs state that they erected the stone gate at the entrance to the back road easement. Given the factual issues, the motion to dismiss is premature.

Plaintiffs' motion to amend their Complaint is unnecessary. Plaintiffs may amend their complaint as of right within 20 days from the service of a pleading responding to it (CPLR 3025), to wit, the Second Amended Verified Answer with Counterclaims. Plaintiffs time to amend had not run as of the time this motion was made. Plaintiffs are directed to serve the Amended Verified Complaint within twenty days from entry of this Order.

Plaintiffs have also moved pursuant to CPLR 3124 and 3126 for an order directing Defendant to provide complete responses to their various discovery demands. Defendant has cross-moved for a protective order.

Plaintiffs assert in their motion that Defendant has failed to adequately respond to four main areas of their discovery demands. After service of this motion, however, Defendant sent her fourth response. Plaintiffs continue to assert, however, that Defendant has failed to set forth the calculations upon which she bases her damages. Plaintiffs would also like to see the actual legal bills which support Defendant's request for compensation in the form of her legal fees. Further, while Defendant alleges that the activities of Plaintiffs have reduced the value of her property, Defendant has failed to offer any expert response to Plaintiffs demand in that regard. Defendant has failed to provide the costs associated with increased security. Defendant has failed to set forth any experts she will call to testify to her damages, and experts she will call to support her claims, and any witnesses she will call to support her various claims.

In her response to the motion for preclusion, Defendant asserts that her most recent answers to the discovery have in fact addressed all the issues, with the exception of the expert who will testify to the reduced value of her property. Defendant admits that the costs she has identified are significantly less than the $750,000.00 set forth in her counterclaim, and basically advises the Court that she has no further damages to identify, except as to the extent that she may have unliquidated damages.

A conditional order of preclusion will be granted. To the extent that there are any further liquidated damages which Defendant has failed to identify, she shall have until September 15, 2006 to identify them and supplement her responses. In the event that she has additional damages which she fails to identify prior to that date, she shall be precluded from offering any evidence as to them.

It is well settled that fee arrangements between attorney and client do not ordinarily constitute a confidential communication and thus are not privileged in the usual case (see, CPLR 4503[a]; Matter of Priest v. Hennessey, 51 AD2d 62). Nevertheless, depending on how much information is set forth in the descriptive narrative, a portion of that may be protected from disclosure, as interviews, conversations, or correspondence with particular individuals, prospective pleadings or motions, legal theories, or similar matters may be protected as part of work product or as material prepared for litigation, making an in camera review of the individual bills appropriate (see, Orange County Publishers, Inc., a Div. Of Ottaway Newspapers v. County of Orange, 168 Misc 2d 346 [NY Sup 1995]). [*5]

The Third Judicial District Expert Disclosure Rule states, in pertinent part, that: "except as otherwise directed by the Court, a party who has the burden of proof on a claim, cause of action damage or defense shall serve its response to an expert demand served pursuant to CPLR 3101 (d) on or before the filing of the note of issue, and sixty days after receipt of that response, any opposing party shall serve its answering response pursuant to CPLR 3101 (d)...Unless the Court directs otherwise, a party who fails to comply with this rule is precluded from offering the testimony and opinions of the expert for whom a timely response has not been given." When asked to exercise its discretion and preclude expert testimony for failure to reasonably comply with the statute, the Court must consider the reasons for the delay and whether the failure to disclose was intentional (see, Silverberg v. Community General Hospital of Sullivan County, 290 AD2d 788 [3rd Dept., 2002]).

With respect to Defendant's cross-motion for a protective order, Plaintiffs are not entitled to review Defendant's unredacted legal billings at this juncture. When and if an award of attorneys fees is made, the Court will review the bills in camera to insure that any confidential attorney-client information is protected. As for the expert disclosure, although the Court did make a preliminary conference order with comprehensive scheduling dates, this order has been revised by agreement of the parties on more than one occasion. The last extension at the request of the parties provided for discovery to be completed by February 25, 2006 and depositions completed by March, 2006. Plaintiffs argue that neither party requested a further extension of the deadline for expert disclosure. The Court finds that while no formal extension was granted, given the adjournment history of this case, it is not unreasonable for Defendant to have anticipated that the deadline for expert disclosure was extended as well. In light of Plaintiffs concerns that they receive timely expert disclosure, the Court directs that Defendant file her expert response no later than September 15, 2006.

Defendant has submitted a motion seeking to cancel the Notice of Pendency as it applies to her two newly subdivided lots. Plaintiffs have submitted a cross-motion to amend the Notice of Pendency, to include notice of a claim pursuant to RPAPL Article 15, which will be added when the Verified Complaint is amended.

Defendant sought and obtained subdivision approval in November 2005, and her property has now been subdivided into three separate lots. Defendant seeks to amend the Notice of Pendency to exclude the two new lots. Defendant argues that the complaint deals with the visual easement, the pond and the field immediately surrounding the pond, and the spruce grove, all of which are located in the larger of the parcels, Parcel 3. Neither the complaint nor the Notice of Pendency claim any title, possession, use or enjoyment of the wooded land now known as Parcels 1 and 2.

In their cross-motion, Plaintiffs argue that the Notice of Pendency should remain on all the parcels. The main contention of the RPAPL Article 15 claim as it will be added to the Verified Complaint is that Plaintiffs have a right not only to the visual easement, use of the pond and property surrounding the pond, but to use of all of Defendant's property, as the 1997 Decree allows them to "take leisurely walks on adjacent areas of Skytop Farm." Further, Plaintiffs argue that Defendant has met none of the statutory requirements to cancel a notice of pendency as those are set forth in CPLR §6514, including that Plaintiffs have acted in bad faith. Plaintiffs also argue that Defendant has asserted a counterclaim in which she seeks to have the right to access to [*6]the pond and property declared personal to Joan Shapiro, as well as the right to first refusal for any sale of the lands of the other party.

The parties have presented conflicting evidence as to the meaning of the 1997 decree, specifically the language regarding the scope of the use of the property for "leisurely walks". Given the existence of such factual issues, it would be premature for the court to cancel the Notice of Pendency as it pertains to Defendant's newly subdivided lots (see, Bonded Concrete v. Johnson, 280 AD2d 758[3rd Dept., 2001]). Plaintiffs request that they be allowed to modify the Notice of Pendency to include their new cause of action to quiet title under RPAPL Article 15 is denied, in that the present Notice of Pendency gives adequate notice as to the existence and nature of the legal dispute between the parties.

Based upon the findings and law as they are set forth above, it is

ORDERED that those portions of the Amended Verified Answer with Counterclaims which purport to assert a cause of action for the intentional infliction of emotional distress, paragraph Seventh, are dismissed; and it is further

ORDERED that those portions of the Second Amended Verified Answer with Counterclaims which seek attorneys fees under the Road Maintenance Agreement are dismissed, and it is further

ORDERED that Defendant shall provide any further responses to Plaintiffs discovery regarding her calculations of liquidated damages by no later than September 15, 2006, and to the extent she fails to identify any additional claims, she shall be precluded from offering any evidence of them at the trial of this action, and it is further

ORDERED that Plaintiffs motion to amend the Verified Complaint is dismissed inasmuch as the Verified Complaint may be amended as of right to include a cause of action to quiet title under RPAPL Article 15, and Plaintiffs are directed to serve the same within twenty days from entry of this Order, and it is further,

ORDERED that Defendant is granted a protective order to the extent that her legal bills are not to be provided to Plaintiffs until further direction of the Court, and it is further

ORDERED that Defendant is directed to provide expert disclosure to Plaintiffs by September 15, 2006, and it is further

ORDERED that Defendant's motion to cancel the Notice of Pendency with respect to her newly subdivided lots is denied, and it is further

ORDERED that Plaintiffs request to modify the Notice of Pendency is denied, and it is further

ORDERED that to the extent that either party has requested attorneys fees or sanctions, the same are denied.

DATED: JULY 18, 2006

ENTER,

[*7]

CHRISTIAN F. HUMMEL

ACTING SUPREME COURT JUSTICE