Young v Young

[*1] Young v Young 2016 NY Slip Op 50092(U) Decided on January 28, 2016 Supreme Court, Suffolk County Tarantino Jr., 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 28, 2016
Supreme Court, Suffolk County

Richard W. Young, Plaintiff(s)

against

Alisa A. Young, Defendant(s)



7206/2015



Richard W. Young Esq

Plaintiff, self represented

863 Islip Ave

Central Islip NY 11722

Michelle Aulivola, Esq

Long Tuminello LLP

Attorneys for Defendant

120 Fourth Ave

Bay Shore NY 11706
Andrew G. Tarantino Jr., J.

HISTORICAL BACKGROUND

Plaintiff and Defendant are currently married but involved in a matrimonial action not before this Court (Index 1249/2013- Richard Young v Alisa Young). During the pendency of the matrimonial action, Plaintiff, a lawyer, has filed two additional actions against Defendant. First, Plaintiff filed a malicious prosecution action against Defendant (Index 3108/2014- Richard Young v Alisa Young). Then, Plaintiff filed this action for, among other things, conversion.

THE INSTANT MOTIONS

Plaintiff moves for an order of default against Defendant based upon Defendant's failure to answer the verified complaint in this matter. Defendant cross moves for an order seeking to extend Defendant's time to serve an answer to the complaint, and to consolidate this action with matrimonial actions appearing in another court. Both parties served opposition to each other's motions.

This action was commenced by filing a summons and verified complaint on April 23, 2015. The complaint alleges seven (7) causes of action, as follows:

FIRST: Conversion. Plaintiff alleges that in February 2015, the Defendant entered the marital premises (where Defendant has not resided for more than 2 years), opened a safe, and took $57,000.00 in "assets". Plaintiff alleges that the "assets" belong to the firm Young & Young, LLP, a named Plaintiff in this action. SECOND: Conversion. Plaintiff alleges that Defendant withdrew $2,606.26 from an account on which the Defendant's name has appeared since 1986.THIRD: Fraud. Plaintiff alleges that the Defendant's act of closing the above account, and concealing it from Plaintiff, caused Plaintiff to be late on his financial obligations.FOURTH: Defamation. Plaintiff alleges that by closing the above account, it harmed Plaintiff's reputation and reduced his credit score.FIFTH: Defamation per se. Plaintiff's allegations are similar as to those set forth in the fourth cause of action.SIXTH: Intentional infliction of emotional distress. Plaintiff alleges that Plaintiff was "caused great personal harm and embarrassment having been notified by his creditors that he failed to pay his invoices due and owing on time" and that Plaintiff became "sick, sore and lame". SEVENTH: Negligent infliction of emotional distress. Plaintiff's allegations are similar as to those set forth in the fourth cause of action.

ANALYSIS

Trial court has broad discretion in considering whether to dismiss an action on the ground that another action is pending between the same parties on the same cause of action. Whitney v. Whitney, 57 NY2d 731, 454 N.Y.S.2d 977, 440 N.E.2d 1324 (1982), on remand, 92 AD2d 935, 460 N.Y.S.2d 359. See also, Feustel v. Rosenblum, 24 AD3d 549, 808 N.Y.S.2d 297 (2 Dep't 2005), rearg. granted, decision recalled and vacated, appeal dismissed as moot, 6 NY3d 885, 817 N.Y.S.2d 211, 850 N.E.2d 25, on rearg., 36 AD3d 615, 825 N.Y.S.2d 916, leave to appeal dismissed in part, denied in part, 8 NY3d 967, 836 N.Y.S.2d 539, 868 N.E.2d 220.

CONVERSION:

The key elements of conversion are (1) plaintiff's possessory right or interest in the property and (2) defendant's dominion over the property or interference with it in derogation of plaintiff's rights. Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 827 N.Y.S.2d 96, 860 N.E.2d 713 (2006). In order to state a cause of action, plaintiff must establish legal ownership of a specific identifiable piece of property and the defendant's exercise over or interference with the property in defiance of plaintiff's rights. Hamlet at Willow Creek Development Co., LLC v Northeast Land Development Corp., 64 AD3d 85, 878 N.Y.S.2d 97 (2d [*2]Dep't 2009). Where one is rightfully in possession of property, one' s continued custody of the property and refusal to deliver it on demand of the owner until the owner proves his or her right to the property does not constitute a conversion. Trans-World Trading, Ltd. v North Shore University Hosp. at Plainview, 64 AD3d 698, 882 N.Y.S.2d 685 (2d Dep't 2009).

Because of the pending matrimonial action, the nature of the alleged converted property must be determined. The definition of marital property should be construed broadly in order to give effect to economic partnership concept of the marriage relationship recognized in governing statute. Mesholam v. Mesholam, 11 NY3d 24, 862 N.Y.S.2d 453, 892 N.E.2d 846 (2008). By identifying nothing less than "all property" acquired during the marriage as marital property subject to equitable distribution, the Domestic Relations Law evinces an unmistakable intent to provide each spouse with a fair share of things of value that each helped to create and expects to enjoy at a future date. DeLuca v. DeLuca, 97 NY2d 139, 736 N.Y.S.2d 651, 762 N.E.2d 337 (2001), on remand, 290 AD2d 410, 736 N.Y.S.2d 601. The court's obligation in divorce, under the equitable distribution law, is not to determine who holds title to property, but rather, to determine whether property is marital or separate property, and if it is marital property, to provide for its equitable distribution between parties. Goldberg v. Goldberg, 143 AD2d 66, 531 N.Y.S.2d 318 (2 Dep't 1988).

This Court will not ponder about why $57,000.00 "cash" of an LLP was in a residential safe, nor about the tax questions raised by the $57,000.00 cash, nor why, if Defendant has not resided in the marital premises for more than two years, the safe combination was not changed. But, in context of the pending matrimonial action, it must be determined if the cash was marital or separate property. That issue is for the matrimonial court in its determination of equitable distribution. The same "separate" property versus "marital" property determination is also required of the $2,606.26 allegedly taken. The Court notes that the Plaintiff alleged that the $2,606.26 was in a joint account, clearly an issue for the matrimonial court. Until those issues are determined by that Court, there is no maintainable action for conversion in this court.

FRAUD:

In an action to recover for fraud, the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury. Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 919 N.Y.S.2d 465, 944 N.E.2d 1104 (2011). As a general rule only factual representations are actionable. Pappas v Harrow Stores, Inc., 140 AD2d 501, 528 N.Y.S.2d 404 (2d Dep't 1988).

Plaintiff failed to allege the slightest speck of an allegation of a misrepresentation made by Defendant for the purpose of inducing the Plaintiff to rely upon it. Further, if Plaintiff is claiming that it was a "material omission of fact" to not notify him that Defendant withdrew the funds, Plaintiff failed to allege any obligation owed to him by Defendant for withdrawing funds from the joint account. Frankly, one might ask why, after knowing that Defendant took $57,000.00 cash, Plaintiff did not check the status of his other accounts before using them? This Court is not persuaded that Plaintiff's lack if diligence translates to Defendant's omission of a material fact. The cause of action for fraud fails.

DEFAMATION:

Defamation is the making of a false statement which tends to "expose the plaintiff to public contempt, or ridicule or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society". Rinaldi v Holt, Rinehart & Winston, Inc., 42 NY2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299 (1977). Defamation may take the form of libel or slander, the basic distinction between the two being simple; slander was defamatory matter addressed to the ear, and libel was defamatory matter addressed to the eye, e.g., writings, pictures, statues. See, Ava v NYP Holdings, Inc., 64 AD3d 407, 885 N.Y.S.2d 247 (1st Dep't 2009). Slander is usually unpremeditated, spoken ad lib, and of limited circulation, while libel bespeaks forethought, and typically achieves permanence through print. See, Ostrowe v Lee, 256 NY 36, 175 N.E. 505 (1931). The essence of the tort of libel is the publication of a statement about an individual that is both false and defamatory. Brian v Richardson, 87 NY2d 46, 637 N.Y.S.2d 347, 660 N.E.2d 1126 (1995); Sheridan v Carter, 48 AD3d 444, 851 N.Y.S.2d 248 (2d Dep't 2008). Two types of libel—libel on its face (previously per se) and libel by extrinsic fact (previously per quod). See, Ava v NYP Holdings, Inc., 64 AD3d 407, 885, 885 N.Y.S.2d 247 (1st Dep't 2009). A cause of action for defamation may be based on the theory that the defamation is express or that it is by implication. See, Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 987 N.Y.S.2d 37 (1st Dep't 2014). Defamation by implication is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements. See, Martin v Daily News L.P., 121 AD3d 90, 990 N.Y.S.2d 473 (1st Dep't 2014). To survive a motion to dismiss a cause of action for defamation based on the theory that the defamation was by implication and the underlying factual statements are substantially true, plaintiff must make a "rigorous showing" that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference. Stepanov v Dow Jones & Co., Inc., supra. It is for the court to determine, initially, whether the words ascribed to the defendant are reasonably capable of conveying a defamatory import. Lenz Hardware, Inc. v Wilson, 94 NY2d 913, 707 N.Y.S.2d 619, 729 N.E.2d 338 (2000).

Plaintiff alleges defamation in that by closing the above account, Defendant harmed Plaintiff's reputation and reduced his credit score. Again, Plaintiff failed to allege any statements made by the Defendant, false or otherwise. And after reviewing the decisional law, this Court cannot find a basis upon which the Fourth and Fifth causes of action could be maintained.

INFLICTION OF EMOTIONAL DISTRESS:

The tort of intentional infliction of emotional distress requires the following four elements: extreme and outrageous conduct; intent to cause or disregard of a substantial probability of causing severe emotional distress; a causal connection between the conduct and injury; and severe emotional distress. Howell v New York Post Co., Inc., 81 NY2d 115, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993). Liability arises only when defendant's conduct is extreme and outrageous, measured by the reasonable bounds of decency tolerated by decent society, Marmelstein v Kehillat New Hempstead, 11 NY3d 15, 862 N.Y.S.2d 311, 892 N.E.2d 375 (2008). More must be involved than hurt feelings; mere insults, indignities, threats, annoyances or other trivialities are not enough. Associates First Capital v Crabill, 51 AD3d 1186, 857 [*3]N.Y.S.2d 799 (3d Dep't 2008). Whether the conduct complained of is outrageous is, in the first instance, for the court. Cavallaro v Pozzi, 28 AD3d 1075, 814 N.Y.S.2d 462 (4th Dep't 2006).

Plaintiff alleges that he was "caused great personal harm and embarrassment having been notified by his creditors that he failed to pay his invoices due and owing on time" and that Plaintiff became "sick, sore and lame". In contrast, the following decisional law serves as a guide to determine whether in this action the Defendant's conduct was "outrageous".

Giving false information to the police is not so outrageous as to be actionable. Brown v Sears Roebuck and Co., 297 AD2d 205, 746 N.Y.S.2d 141 (1st Dep't 2002). Fabricating an email in plaintiff's name in which plaintiff was made to appear to be a rude, petty, self-absorbed cartoonist was not so outrageous and shocking as to be actionable, nor was making statements via email encouraging people to "vomit" on plaintiff. Rall v Hellman, 284 AD2d 113, 726 N.Y.S.2d 629 (1st Dep't 2001). Allegations that defendant dumped a pile of cement on the sidewalk in front of plaintiff's house, tossed lighted cigarettes into plaintiff's backyard, threw eggs on his front steps, and threatened to paint a swastika on his house do not rise to the requisite level of outrageousness. Seltzer v Bayer, 272 AD2d 263, 709 N.Y.S.2d 21 (1st Dep't 2000). A funeral home's misdelivery of cremated remains was not so outrageous as to be actionable. Sarlo v Fairchild Sons, Inc., 256 AD2d 322, 681 N.Y.S.2d 555 (2d Dep't 1998).

It is the opinion of this Court that, sadly, the conduct complained of, that is, the taking of assets, has become almost usual and customary within the bounds of a matrimonial action. Regardless if others may share that opinion, based upon the decisional law, this Court cannot view the taking of the cash as extreme and outrageous conduct with intent to cause severe emotional distress.

The Court need not look to the alleged harm at this time, but the Plaintiff should be aware that the distress must be severe. Christenson v Gutman, 249 AD2d 805, 671 N.Y.S.2d 835 (3d Dep't 1998); see, Richard L. v Armon, 144 AD2d 1, 536 N.Y.S.2d 1014 (2d Dep't 1989), and that the claim of severe emotional distress must be supported by medical evidence. Roche v Claverack Co-op. Ins. Co., 59 AD3d 914, 874 N.Y.S.2d 592 (3d Dep't 2009); Walentas v Johnes, 257 AD2d 352, 683 N.Y.S.2d 56 (1st Dep't 1999); see, Leone v Leewood Service Station, Inc., 212 AD2d 669, 624 N.Y.S.2d 610 (2d Dep't 1995).

Accordingly it is hereby

ORDERED and ADJUDGED that the Cross-motion by Defendant alleging that there is an action pending in another court is hereby deemed under the facts and circumstances a cross-motion to dismiss; and it is further

ADJUDGED that both the $57,000.00 and $2,606.26 allegedly taken by the Defendant constitutes property within the matrimonial action the apportionment of which is best left to the matrimonial court after determining the nature of those monies; and it is further

ADJUDGED that the Plaintiff has failed to state causes of action against the Defendant for conversion, fraud, defamation, and infliction of emotional distress; and it is further

ORDERED that the complaint is dismissed.

Dated: January 28, 2016

___________________________________

Andrew G. Tarantino, Jr. A.J.S.C.