84 A.D.2d 513 | N.Y. App. Div. | 1981
Dissenting Opinion
I would affirm. This dissent is not in contention with the philosophy of the majority opinion, but only with respect to the means adopted. This is a suit by 12 tenants setting forth a number of causes of action with allegations of harassment by their landlord. They seek also to add five former tenants as plaintiffs. If only individual rights were sought to be protected, then I could concur with the majority, but in this case the tenants are all arrayed against the landlord in mutual recriminations. The modem love-hate relationship between landlord and tenant in New York City has spawned the Housing Court for this situation. In his 1981 Report on New State Laws Affecting Consumer Protection, Assistant Attorney-General of New York Stephen Mindell summarized legislation adopted during the regular legislative session in 1981. (NYU, Aug. 11, 1981, p 1, col 2.) In the general area of the landlord-tenant controversy is the following: “Evictions. The purpose of L. 1981, ch. 467 is to amend Sections 713(10) and 853 of the real property actions and proceedings law in relation to forcible entry and detainer. The law takes effect immediately. The law amends Sections 713(10) and 853 of the RPAPL to expand the grounds upon which a summary proceeding to recover possession of property or a treble damages action for forcible entry or detainer may be brought. The law adds the words ‘unlawful means’ to the respective statutes. One of the elements to allege and prove under the cited statutes is that the person in possession of the premises involved entered by
Lead Opinion
Order, Supreme Court, New York County (Blangiardo, J.), entered May 22, 1980, denying plaintiffs’ cross motion to add five plaintiffs to the action and granting defendant’s motion to dismiss for failure to state a cause of action, reversed, on the law, motion to dismiss denied and cross motion granted, without costs. When viewed as a whole, and assuming the truth of the facts pleaded for the purposes of the motion, we find the allegations of this complaint to sufficiently state a cause of action for the intentional infliction of severe emotional distress. “‘[Wjhere severe mental pain or anguish is inflicted through a deliberate and malicious campaign of harassment or intimidation, a remedy is available in the form of an action for the intentional infliction of emotional distress’ ” (Long v Beneficial Fin. Co. of N. Y., 39 AD2d 11, 13, quoting Nader v General Motors Corp., 25 NY2d 560, 569). Here, the allegations taken together have shown a “planned program of harassment or threats” (Nestlerode v Federal Ins. Co., 66 AD2d 504, 507) with outrageous actions and a deliberate, continuous course of conduct on the part of the defendants and resulting emotional upset, proof of which will be best left for trial. Concur — Sandler, Sullivan and Carro, JJ.; Kupferman, J. P., and Ross, J., dissent in separate memoranda as follows.
Dissenting Opinion
In this landlord-tenant action, the 16 named tenants assert 12 causes of action against their landlord. A majority of this court holds that the complaint asserts a cause of action for the intentional infliction of severe emotional distress. A reading of the complaint leads me to conclude otherwise. These pleadings are fatally flawed in that they fail to allege conduct so outrageous or atrocious as to transcend all bounds of decency. The rule has been stated: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress” (Restatement, Torts 2d, § 46, subd [1]). Liability will only attach where the complained of actions are “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious” (see comment d). (See, also, Fischer v Maloney, 43 NY2d 553.) The complaint now before this court merely contains vague and general allegations of a course of conduct engaged in by the defendants. There is no delineation of that type of severe conduct which forms the predicate for liability. Since this element is lacking the plaintiffs should be afforded the opportunity to replead their cause of action, if so desired. Accordingly, I would affirm the order appealed from without prejudice to plaintiffs’ repleading their cause of action.
