Herman v Spitz

[*1] Herman v Spitz 2004 NY Slip Op 51567(U) Decided on October 5, 2004 Civil Court Of The City Of New York, New York County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2004
Civil Court of the City of New York, New York County

JEFFREY HERMAN, Plaintiff

against

DEBORAH SPITZ, a/k/a DEBBIE SPITZ, a/k/a SUKIE RAY SPITZ, a/k/a SUKIE RAE SPITZ, a/k/a SUKIE RAY, Defendant



JEFFREY HERMAN, Plaintiff

against

CITY OF NEW YORK, Defendant



22090/2002



For Plaintiff Herman

Gary S. Fish Esq.

15 Maiden Lane, New York, NY 10038

For Defendant Spitz

Howard L. Blau Esq.

300 Park Avenue, New York, NY 10022

Lucy Billings, J.

I.BACKGROUND [*2]

Claiming abuse of process, malicious prosecution and intentional infliction of emotional distress, plaintiff sues to recover damages for the emotional distress he sustained from criminal proceedings defendant initiated against him. Defendant counterclaims for damages for emotional distress plaintiff caused her. Plaintiff moves for summary judgment dismissing defendant's counterclaim. C.P.L.R. § 3212(b). For the reasons explained below, the court denies the motion.

II.INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

A claim of intentional infliction of emotional distress requires evidence that (1) a party engaged in extreme and outrageous conduct; (2) the party intended to cause or disregarded a substantial likelihood of causing severe emotional distress; (3) there is a causal connection between the conduct and harm; and (4) the victim suffered severe emotional distress. Howell v. New York Post Co., 81 NY2d 115, 121 (1993); Graupner v. Roth, 293 AD2d 408, 410 (1st Dep't 2002); Cohn-Frankel v. United Synagogue of Conservative Judaism, 246 AD2d 332 (1st Dep't 1998). The conduct causing the emotional turmoil must exceed the bounds of decency so as to be utterly intolerable in a civilized society. Bement v. N.Y.P. Holdings, 307 AD2d 86, 92 (1st Dep't 2003); Bronx-Lebanon Hosp. Ctr. v. Wiznia, 284 AD2d 265, 266 (1st Dep't 2001). A claim for emotional distress may be based by "a campaign of harassment or intimidation." Nader v. General Motors Corp., 25 NY2d 560, 569 (1970); 164 Mulberry St. Corp. v. Columbia Univ., 4 AD3d 49, 56 (2004); Seltzer v. Bayer, 272 AD2d 263, 264-65 (1st Dep't 2000); Vasarhelyi v. New School for Social Research, 230 AD2d 658, 661 (1st Dep't 1996).

Plaintiff rests his motion on portions of defendant's verified responses to plaintiff's interrogatories, which include allegations regarding her emotional distress. Defendant, who resides in an apartment adjacent to plaintiff's apartment, alleges that plaintiff began harassing her February 11, 2001, when he flew into a rage and punched a hole in her door, which caused her to stay at a friend's home for over a week, and that plaintiff's harassment continued through at least December 2002. His harassing conduct included "ranting, raging, pounding, and threatening Defendant" through the parties' common apartment wall and the hall outside their apartments and standing outside her apartment door or the elevator when she exited. Aff. of Gary S. Fish, Ex. 4 at 1. The harassing incidents did not occur daily, but were too frequent to count. Defendant further alleges that plaintiff leaves his television turned on all night and that his smoking causes her breathing difficulties. Finally, defendant claims that due to the proximity of plaintiff's apartment, plaintiff's conduct has caused her to suffer continuing humiliation, shock, intense anxiety, fear, and loss of sleep, for which she has sought treatment.

Defendant's allegations show a campaign of deliberate and malicious harassment adequate for a claim of intentional infliction of emotional distress. Shannon v. MTA Metro-North R. R., 269 AD2d 218, 219 (1st Dep't 2000); Warner v. Druckier, 266 AD2d 2 (1st Dep't 1999); Murphy v. Murphy, 109 AD2d 965, 966 (3d Dep't 1985). Although plaintiff points to defendant's admission that he did not strike her or attempt to do so, physical contact is not required to establish intentional infliction of emotional distress. Gill Farms v. Darrow, 256 AD2d 995, 997 (3d Dep't 1998); Flatley v. Hartmann, 138 AD2d 345, 346 (2d Dep't 1988). See Chinese Consol. Benevolent Assn. v. Tsang, 254 AD2d 222 (1st Dep't 1998). Moreover, although defendant must support her severe emotional distress with medical evidence to prove her damages at trial, Walentas v. Johnes, 257 AD2d 352, 353 (1st Dep't 1999); [*3]Young v. GSL Enters., 237 AD2d 119 (1st Dep't 1997); Callas v. Eisenberg, 192 AD2d 349, 350 (1st Dep't 1993), plaintiff's causation of severe distress may be inferred from her sworn allegations demonstrating his intent to inflict that distress, the likelihood his actions would do so, and her emotional condition and treatment for it, without medical evidence. Garcia v. Lawrence Hosp., 5 AD3d 227, 228 (1st Dep't 2004); Massaro v. O'Shea Funeral Home, 292 AD2d 349, 351 (2d Dep't 2002); Murphy v. Murphy, 109 AD2d at 966-67. Medical evidence is not essential to finding plaintiff liable for defendant's emotional distress, but relevant only to the extent of her damages. Garcia v. Lawrence Hosp., 5 AD3d at 228; Massaro v. O'Shea Funeral Home, 292 AD2d at 351.

III.CONCLUSION

In sum, medical evidence is not essential to finding plaintiff liable for defendant's emotional distress, but relevant only to the extent of her damages. Garcia v. Lawrence Hosp., 5 AD3d at 228; Massaro v. O'Shea Funeral Home, 292 AD2d at 351. Because defendant alleges sufficient facts to support her counterclaim for intentional infliction of emotional distress against plaintiff, the court denies his motion for summary judgment dismissing her counterclaim.

DATED: October 5, 2004

______________________________

LUCY BILLINGS, J.C.C.