646 N.Y.S.2d 193 | N.Y. App. Div. | 1996
Lead Opinion
OPINION OF THE COURT
This action, in which plaintiffs seek to recover damages for the intentional infliction of emotional distress, arose out of what began as a dispute between neighbors concerning a murky condition in the lake which abuts the adjoining properties. According to defendants, the condition was caused by plaintiffs’ construction of a house on their property. Defendants complained to plaintiffs, complained to government officials and commenced an action against plaintiffs, all of which proved unsuccessful (see, Farrell v Stram, — AD2d —, 1996 NY Slip Op 06130 [June 20, 1996]). There is also evidence in the record which, if believed, demonstrates that defendant Edward J. Farrell (hereinafter defendant) harassed and threatened plaintiff Richard A. Stram (hereinafter plaintiff) and engaged in egregious conduct which adversely affected the emotional health of plaintiff and his wife. The record establishes that during the relevant time period, plaintiff was suffering the physical and emotional effects of cancer and major surgery, which had required him to give up his practice of medicine. There is evidence that defendants were aware of plaintiff’s condition.
Our analysis begins with defendants’ Statute of Limitations argument. The viability of a continuous course of conduct theory as a means to resolve a timeliness issue raised in an action based upon intentional infliction of emotional distress is debatable (compare, Drury v Tucker, 210 AD2d 891, with Foley v Mobil Chem. Co., 214 AD2d 1003). However, we need not decide the issue in this case.
"The parties to a lawsuit are free to chart their own course at the trial * * * and may fashion the basis upon which a particular controversy will be resolved” (Cullen v Naples, 31 NY2d 818, 820). The parties herein adopted the continuous course of conduct theory to resolve the controversy created by defendants’ assertion of the Statute of Limitations as a bar to plaintiffs’ action. It is our view, therefore, that in the absence of a strong countervailing public policy, we should not now disturb the course charted by the parties at trial and order a new trial on a different theory (see, Martin v City of Cohoes, 37 NY2d 162, 165-166).
Based upon the foregoing analysis, our inquiry must focus on the sufficiency of the evidence to support the jury’s finding of a continuous course of conduct, which was given to them as an issue of fact. Applying the appropriate standard (see, Lolik v Big V Supermarkets, 86 NY2d 744, 746) and recognizing that "[t]he narrow scope of appellate evidentiary review, when factual and credibility issues are in * * * dispute, supports giving prudent deference to the traditional, trusted jury process, so long as the required rationality minimum of evidence is adduced” (Campbell v City of Elmira, 84 NY2d 505, 513), we see no basis to disturb the jury’s finding of a continuous course of conduct.
Turning to the issue of defendants’ liability under the claim interposed by plaintiffs, intentional infliction of emotional distress, unlike other intentional torts, "does not
On the issue of compensatory damages, the jury was charged that it should determine the amount of money that will fairly compensate each plaintiff for his or her injury proximately caused by defendants’ wrongful conduct. Defendants neither objected to the charge nor requested the type of limitation that the dissent would impose. Nevertheless, we cannot sustain the award in its entirety because the award of $600,000 to plaintiff and $100,000 to his wife is excessive; it deviates materially from what would be reasonable compensation (see, CPLR 5501 [c]). There is evidence in the record that defendant’s tortious conduct aggravated plaintiff’s emotional condition, but it is our view that the evidence does not support an award in excess of $250,000 to plaintiff and $50,000 to his wife. Plaintiff cannot recover damages for the preexisting emotional harm caused by his cancer and his inability to resume his medical practice after surgery, and there is insufficient evidence regarding the permanency of the emotional harm caused by defendant’s conduct (see, Murphy v Murphy, 109 AD2d 965, 967). As the record in no way justifies a finding that defendants’ conduct was so unacceptable "as to evince a high degree of moral turpitude” and "a criminal indifference to civil obligations” (Zarin v Reid & Priest, 184 AD2d 385, 388), the award of punitive damages must be reversed. We have considered defendants’ remaining arguments and find them meritless.
As a final matter, we note that defendants’ separate appeal from the order which denied their motion for summary judgment is unnecessary, as the appeal from the judgment
We find no support in the record for the dissent’s conclusion that Supreme Court repeatedly rejected defendants’ arguments that the continuous course of conduct theory was inappropriate. To the contrary, defendants’ argument in support of their motion for summary judgment contains no reference to the continuous course of conduct theory, and after Supreme Court applied the theory to deny their motion defendants never articulated any objection to the use of the theory to resolve the Statute of Limitations issue. In these circumstances, we are of the view that the question of the validity of the theory was not preserved (see, Parkin v Cornell Univ., 78 NY2d 523, 530-531). We are also of the view that if the dissent is correct and liability must be determined solely on the basis of defendants’ conduct within one year of the commencement of the action, the complaint should be dismissed, for the conduct, as so limited, is patently insufficient as a matter of law to establish intentional infliction of emotional distress (see, Fischer v Maloney, 43 NY2d 553, supra).
. This action was commenced on October 27, 1992.
. This Court has recognized and applied such a theory in other contexts (see, Matter of New York State Dept. of Correctional Servs. v New York State Div. of Human Rights, 225 AD2d 856, 858; People v Morin, 192 AD2d 791,
Dissenting Opinion
We respectfully dissent.
To conclude that defendants acquiesced in Supreme Court’s ruling respecting the applicability of the "course of conduct” theory advanced by plaintiffs, simply because they interposed a defense in conformity with that ruling, strikes us as unrealistic and unfair, for after the court repeatedly rejected defendants’ argument that recovery could be had only for conduct that occurred within the one-year Statute of Limitations period, the only avenue open to them was to defend the case in accordance with the theory adopted by the court. Once defendants’ motions for summary judgment, and later for a directed verdict, were denied — and there was no reason to believe that Supreme Court would not continue to adhere to its acceptance of plaintiffs’ "course of conduct” approach — defendants were not
Nor do we read defendants’ briefs as manifesting an intent to abandon their contention that plaintiffs are precluded from recovering for injuries caused by acts that occurred outside the limitations period. While defendants make an alternative argument that reversal is warranted even under the "course of conduct” approach (indeed, given Supreme Court’s rulings and the conflicting appellate decisions on the issue [see, infra], defendants’ counsel would have been remiss had he not done so), defendants also continue to assert, on appeal, that the complaint should have been dismissed because the hurtful conduct that plaintiffs allege was inflicted upon them "within the year” does not rise to the level necessary to sustain a claim of this type.
As for the merits of defendants’ Statute of Limitations argument, we believe that Supreme Court should have embraced their position on this issue. Although some of the events that furnish the basis for plaintiffs’ claims occurred within a year prior to the commencement of the action, the incident that was undeniably the most flagrant — and which, according to the treating physicians of plaintiff Richard A. Stram (hereinafter plaintiff), caused a significant portion of his psychological difficulties — took place during the weekend of July 4, 1991.
The "course of conduct” or "continuing wrong” approach has, as the majority notes, been invoked by other courts to permit recovery for claims of this nature (see, Drury v Tucker, 210 AD2d 891, 892; Neufeld v Neufeld, 910 F Supp 977, 982-983; cf., Misek-Falkoff v International Bus. Machs. Corp., 162
The foregoing leads us to conclude that plaintiffs’ complaint, to the extent it seeks compensation for injuries caused by the events that transpired prior to October 27, 1991, should have been summarily dismissed (see, Weisman v Weisman, 108 AD2d 852, 853), and that the proof introduced .at trial should have been limited accordingly. We are unable to say, however, as a matter of law, that no reasonable jury could find the harassing conduct that was purportedly engaged in by defendants within the limitations period to be actionable. Significantly, that conduct includes the filing of a verified complaint in which defendants averred that plaintiffs "willfully”, "intentionally” and "maliciously” fouled the lake. The evidence adduced at trial could support a finding that these mean-spirited averments were entirely baseless and made solely to vex and aggravate plaintiffs. In light of what defendants knew regarding plaintiff’s apparently fragile frame of mind at the time, the making of such spurious allegations could be considered to have exceeded " 'all possible bounds of decency’ ” (Murphy v
Hence, a new trial should be had at which, in order to prevail, plaintiffs would have to prove that defendants’ conduct within the Statute of Limitations period was performed with the requisite culpability, rose to the level necessary to justify the imposition of liability and caused plaintiffs serious emotional distress. We recognize that plaintiffs’ need to demonstrate their susceptibility to injury at the time of these events, and to also show that defendants were aware of plaintiffs’ vulnerability in this regard (see, Restatement [Second] of Torts § 46, comment f), might involve the introduction of some evidence relating to the July 4, 1991 incidents and their corrosive impact upon plaintiffs’ state of mind. With the admission of any such evidence, however, defendants would be entitled to an instruction informing the jury as to the limited purpose for which it was being received, namely, to show plaintiffs’ particular susceptivity to emotional harm and defendants’ knowledge thereof.
Cardona, P. J., and Crew III, J., concur with Casey, J.; Yesawich Jr., J., dissents in a separate opinion in which Mikoll, J., concurs.
Ordered that the appeal from the order entered March 27, 1995 is dismissed, without costs, as unnecessary.
Ordered that the judgment is modified, on the law and the facts, without costs, by reversing so much thereof as awarded plaintiffs punitive damages and dismissing the complaint as to defendant Janice Farrell; a new trial is ordered as to the issue of damages only, unless, within 20 days after service of a copy of this Court’s opinion and order, plaintiffs stipulate to reduce the amount of the compensatory damages awarded by the verdict to $250,000 for plaintiff Richard A. Stram and $50,000 for plaintiff Janet Stram, in which event, the judgment, as so modified and reduced, is affirmed.
Ordered that the appeal from order entered May 15, 1995 is dismissed, without costs, as moot.
As recited in plaintiffs’ brief, and borne out by the evidence, during that weekend, defendant Edward J. Farrell (hereinafter defendant): "screamed vile obscenities at [plaintiff] and his 8 and 11 year old daughters, accompanied by obscene gestures and threats. [Defendant] shouted, among other things, that [plaintiff] was a 'cowardly piece of shit,’ that 'I’m going to kill you,’ 'Fuck you and I’ll fuck your daughters,’ 'Over your dead fucking body * * * you can throw your fucking girls in the fucking water.’ During this rage, [defendant] was running back and forth on the shore waving something at them while [plaintiff] and his daughters were on their dock and later in their boat.”