Bernat v Williams

[*1] Bernat v Williams 2010 NY Slip Op 50807(U) [27 Misc 3d 1219(A)] Decided on May 5, 2010 Supreme Court, Nassau County Palmieri, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 5, 2010
Supreme Court, Nassau County

Lisa Bernat, Plaintiff,

against

Stephanie Williams, a/k/a Stephanie Williams-Hoffman, as the Executrix of the Estate of Christopher Williams, Defendants.



19023/09



The Law Offices of Brian J. Davis, Esq.

Attorney for Plaintiff

400 Garden City Plaza, Ste. 430

Garden City, NY 11530

Law Offices of Greenfield & Ruhl

Attorneys for Defendants

220 Mineola Boulevard

Mineola, NY 11501

Daniel R. Palmieri, J.

This motion by the plaintiff for summary judgment pursuant to CPLR 3212 is granted to the extent that summary judgment is granted on the issue of liability, and the matter will proceed to discovery and trial on the issue of damages.

This is one of those rare cases in which a plaintiff has made out a compelling claim for the intentional infliction of emotional distress, and, rarer still, has been able to demonstrate entitlement to judgment as a matter of law regarding liability. This also applies to a related property damage claim.

Initially, it must be noted that this law suit is in its very early stages. The plaintiff has yet to be deposed, and the person whose actions are the cause of the litigation is deceased. As a general matter these factors alone would give the Court pause in granting judgment in favor of plaintiff. Further, and as is indicated below, not every aspect of the plaintiff's factual recitation is undisputed, and certainly is not undisputable. However, the key elements of her affidavit and that of her brother, [*2]also a witness, are not controverted, and they are sufficient.

The plaintiff lived with her son from a prior marriage in a cottage in Port Washington, New York, which was owned by her parents. In her affidavit, she states that she and the defendant's decedent, Christopher Williams, were involved in a romantic relationship for a five-year period, from 2004 until June, 2009. The plaintiff attempted to end the relationship that June, but Williams continued to make contact with her via numerous telephone calls, text messages (presumably, to her cellular phone), and email. He also appeared at her home, which she states "bordered on stalking." Plaintiff asked him to end these contacts.

July 8, 2009 was Williams's birthday. The plaintiff was at dinner with another person, and received multiple texts and telephone calls from him during that time. After she arrived home, between 9:30 and 10 p.m., she received some additional messages from Williams advising her that he would be coming to her house within a half-hour. Plaintiff's son was not home that night, and in order to avoid a confrontation with Williams plaintiff elected to drive around the Port Washington area, and parked near her parents' home, where she briefly slept in her car. She returned to her own home at approximately 2 a.m after she realized that the messages from Williams had stopped.

When she arrived she observed Williams's vehicle in front of her home, and she believed that he had let himself in with a spare key. It was her intention to ask him to leave. She entered the house, and found him dead in her bedroom. She states, "I discovered that the deceased had gone into my bedroom and had committed suicide with a shot gun blast to the head. I was confronted with his decapitated body with blood and body parts strewn throughout the room, the ceiling fan having spread tissue and blood around the room. I nearly collapsed and don't have a clear recollection of all that transpired after this. I went into shock and minutes later began hysterically crying." Bernat Aff., ¶ 6.

She also describes sequelae to the events of that night, including anxiety and apprehension in returning to the house, especially in the evening, nightmares, and difficulty in concentrating at work, to which she returned after a week's absence. Plaintiff began therapy after the occurrence, arranged to sanitize the room, and to dispose of property and belongings that were contaminated by human tissue and blood. The latter underlies her claim for property damage.

Christian Hehn, plaintiff's brother, also submits an affidavit. He too resides in Port Washington, approximately one block from the scene. He is a professional emergency medical technician who responds to 911 calls, and a volunteer fireman with the Port Washington Fire Department, where he serves as an ambulance paramedic. On July 9, 2009 he was awakened by a "scanner" indicating a response to his sister's home, and he went to that location within a few minutes. He found his sister outside the home, "absolutely traumatized." He spoke to the police and found out what had occurred, but did not act as a paramedic because of what he perceived to be a conflict of interest. The balance of his affidavit describes attempts by both Hehn, their parents and another brother, all of whom arrived shortly after he did, to calm and comfort the plaintiff, who continued to cry and state [*3]that she could have been killed herself.

The foregoing affidavits are sufficient as prima facie proof for a claim of intentional infliction of emotional distress, and the related property damage claim. Also submitted is an unsworn letter from therapist Nomi Rinke, written to plaintiff's counsel. As it is not sworn its contents are inadmissible and have not been considered. See, Bergen v Bergen, 299 AD2d 308 (2d Dept. 2002).

To make out a cause of action for this tort, the plaintiff must show 1) extreme and outrageous conduct, 2) done with an intent to cause, or in disregard of a substantial probability of causing, severe emotional distress, 3) a causal connection between the conduct and the injury, and 4) severe emotional distress. Howell v New York Post Co., 81 NY2d 115, 121 (1993); Roach v Stern, 252 AD2d 488 (2d Dept. 1998). Making out such a claim often proves a difficult task for plaintiffs, and recent appellate decisions demonstrate that even in cases where conduct has been arguably egregious, it also has been found not sufficiently outrageous to survive dismissal. See, e.g., Suarez v Bakalchuk, 66 AD3d 419 (1st Dept. 2009) [vulgar language by doctor on a discharge form]; Epifani v Johnson, 65 AD3d 224 (2d Dept. 2009) [employer's abusive language, unreasonable and oppressive work rules]; Kunz v New Netherlands Routes, Inc., 64 AD3d 956 (3d Dept. 2009) [comments and actions by fellow board member after sexual assault of plaintiff by another board member].

The analysis is by its nature always fact-specific, and some cases indicate that a pattern of harassment or intimidation of the plaintiff will qualify. See, Eves v Ray, 42 AD3d 481 (2d Dept. 2007) [attorney stalked and threatened by his client's former husband, despite order of protection]; Mitchell v Giambruno, 35 AD3d 1040 (3d Dept. 2006) [two year, relentless campaign of lewd comments and intimidation directed to same-sex couple by neighbors]; 164 Mulberry St. Corp. v Columbia Univ., 4 AD3d 49 (1st Dept. 2004) [letter writing campaign to restaurants falsely accusing them of having caused food poisoning]. However, a single incident, if sufficiently outrageous, also can be deemed sufficient to support the claim. Roach v Stern, 252 AD2d 488, supra [talk-show host Howard Stern handling cremated remains of former guest, making lewd comments, against express wishes of next-of-kin].

In the present case, the Court has little difficulty in finding that such a case has been made out. The decedent's conduct, whatever his motivation, was certainly outrageous. Even assuming that at the moment he decided to turn the gun on himself he did not intend to cause distress but only to end his own life, he certainly acted in utter disregard of the probability that finding his body in the plaintiff's bed, mutilated by a shot gun blast, would cause her extreme emotional distress. Finally, the plaintiff's affidavit, and that of her brother — and indeed, common sense — provide a causal connection between the distress she describes and the outrageous conduct. It should also be noted that neither medical treatment nor psychological counseling is essential to the claim, although it is relevant with respect to the measure of damages. Garcia v Lawrence Hosp., 5 AD3d 227 (1st Dept. 2004). The fact that the letter from the therapist is inadmissible is therefore no bar to the relief sought. [*4]

Accordingly, the burden on this summary judgment motion shifts to the defendant to demonstrate that issues of fact exist meriting a trial. See generally, Zuckerman v City of New York, 49 NY2d 557 (1980). This has not been accomplished with regard to liability.

Without challenging the fact of the suicide (and there is nothing in the record to suggest any other explanation for the death), its location or the discovery of Williams's body by the plaintiff, defendant asserts that the motion should be denied for two reasons. First, she argues that a jury should determine whether or not the decedent's conduct was extreme and outrageous, and whether the plaintiff has suffered severe emotional distress, the latter of which is both an element of the tort and a measure of damages. The second basis for opposition is the absence of meaningful discovery, a resort to CPLR 3212(f).

Initially, whether or not the requisite outrageous nature of the conduct has been satisfied is, in the first instance, a matter for the Court (164 Mulberry St. Corp. v Columbia Univ., 4 AD3d 49, supra,at 56), and, as indicated above, the Court finds that blasting one's body apart in a lover's bedroom is outrageous and reckless as a matter of law, and common human experience as well.

The decedent's sister, the estate representative defendant in this suit, states in her affidavit that she overheard the plaintiff at Williams's wake state that she was "excited" that the insurance company was paying to have her room repainted. She also states that her brother's phone revealed messages from the plaintiff a week before his death, in which the plaintiff was checking on him, and that she was going to see him and call him. Email messages are also presented, indicating personal and friendly contacts between the plaintiff and Williams shortly before his suicide. From this evidence it is argued that there is a factual issue concerning the allegedly unwelcome nature of the decedent's attempts to continue the romantic relationship. In reply, the plaintiff denies and explains much of this, including the insensitive statement about the insurance coverage (she avers she did ask if there were any insurance because of the state of the bedroom and the cost of repair, but nothing more).

However, even viewing the defendant's evidence in a manner most favorable to her as the motion opponent (see, e.g., Nicklas v Tedlen Realty Corp., 305 AD2d 385 [2d Dept. 2003]; Rizzo v. Lincoln Diner Corp., 215 AD2d 546 [2d Dept. 1995]), the issues of fact raised are those that concern the events and feelings of the parties to the relationship prior to the suicide. They do not affect the heart of the plaintiff's case, which is the reckless and outrageous nature of the decedent's act, and the severe emotional impact on the plaintiff that resulted. The one alleged comment that has to do with plaintiff's feelings afterwards — the insurance — simply does not rise to the level of proof that she may not have suffered any adverse impact from the events of July 8-9, 2009.

Similarly, the Court must reject the defendant's attempt to argue that discovery may reveal evidence that would be sufficient to rebut the plaintiff's proof on liability. Because the nature, location and circumstances of the plaintiff's discovery of the body are not controverted, and there is nothing presented by the defendant to indicate that these factors [*5]may not have been as stated by the plaintiff, or that she somehow encouraged or had a role in the decedent's act, and there has been no showing that disclosure could lead to a different result. Mere hope that discovery may reveal facts sufficient to defeat the motion is insufficient. See, e.g., Companion Life Ins. Co. v All State Abstract Co., 35 AD3d 519 (2d Dept. 2006). Indeed, it is worth noting that even assuming defendant is correct about the continued close relationship between the plaintiff and the decedent shortly before the suicide, it would do nothing to mitigate the impact of plaintiff's discovery in her bedroom. Indeed, it might have made the effect on her even more severe. In a case such as this one, "there exists an especial likelihood of genuine and serious mental distress, arising from the special circumstances' " Garcia v Lawrence Hosp., 5 AD3d 227, supra, at 228, quoting Johnson v State of New York, 37 NY2d 378, 382 (1975) and Prosser, Torts § 54, at 330 (4th ed).

The Court therefore grants judgment to the plaintiff on the issue of liability. The second, third, fifth, sixth, seventh, eighth, tenth, eleventh and twelfth affirmative defenses are dismissed, as all raise defenses to liability that are without merit for the reasons stated above. The ninth is dismissed because it raises the disability of the defendant, but the estate is represented and the action can therefore proceed. CPLR 1015(a).

Nevertheless, the Court agrees with the defendant's attorney that the plaintiff's distress is both an element of the cause of action and a measure of damages. The Court has found that enough has been shown to make out the plaintiff's claim as a matter of law, including the element of severe emotional distress, but the defendant is entitled to disclosure in order to explore the level of that distress both at and immediately after the event, and to present day, as plaintiff seeks compensation therefor. The same is true of the allied property damage claim. Accordingly, this decision and order does not resolve those issues, and the case will proceed on the issue of damages.

Counsel shall report for a Preliminary Conference on June 9, 2010, lower level of the Courthouse,100 Supreme Court Drive, Mineola, NY, at 9:30 a.m. No adjournments of this conference will be permitted absent the permission of or Order of this Court. All parties are forewarned that failure to attend the conference may result in Judgment by Default, the dismissal of pleadings (see 22 NYCRR 202.27) or monetary sanctions (22 NYCRR 130-2.1 et seq.).

This shall constitute the Decision and Order of this Court.

ENTER

DATED: May 5, 2010

_____________________________

HON. DANIEL PALMIERI

Acting Supreme Court Justice [*6]