Zane v. Corbett

— 1604 — Memorandum: Plaintiffs commenced this action seeking, inter alia, damages for emotional distress that they sustained as a result of the actions of defendants. The facts of this case, developed in a week-long trial during which 13 witnesses testified for plaintiffs, are disturbing. The evidence established that plaintiff Florine Zane has lived in her house in Utica for 43 years. D.A. Brigham-Manley (defendant) moved into the house next door to Zane in approximately 1993 with her then-husband. The infant plaintiffs, who were 6 and 11 years old at the time most of the incidents took place, resided with Zane, their grandmother. Plaintiff Lisa Zane-Morreale is Zane’s daughter and shares joint custody of the infant plaintiffs, her nephews, with Zane. Although Zane-Morreale did not live with Zane and the children, her testimony established that she was often present at Zane’s house. The conflicts between plaintiffs and defendant began 10 years after defendant moved to that location, when defendant’s husband moved out of defendant’s house and defendant Mark S. Corbett, defendant’s boyfriend, moved in. Over approximately the next IV2 years, Corbett began an unrelenting campaign of harassment against plaintiffs and their visitors, including swearing and making obscene gestures at them, blowing an air horn, videotaping as well as taking pictures of them, and shining a spotlight and red laser on them. For example, Zane testified at trial concerning incidents in which Corbett called her a “f. . . asshole” and a “f. . . fat ass bitch.” She further testified that, any time someone came to her house, Corbett would come outside and would swear at the visitor. Defendants’ most disturbing conduct was directed at the infant plaintiffs. Zane testified that Corbett called the infant plaintiffs “crackheads” and “f. . . little bastards” and made an obscene hand gesture toward them. The younger infant plaintiff testified at trial that both Corbett and defendant swore at him and his friends. He also testified that Corbett would stand — 1605 — outside and videotape him while he played with his friends. Although the testimony established that Corbett was the major offender of the outrageous conduct, the testimony further established that defendant was also a participant and in fact encouraged Corbett to engage in that conduct. For example, when Corbett was swearing at a member of plaintiffs’ family, Corbett asked defendant, “Do you want me to beat his f. . . ass?,” to which she replied, “[Y]es, babe, beat his f . . . ass.” Corbett and defendant directed similar conduct toward an attorney on two occasions when the attorney visited Zane. There are a multitude of similar examples of the behavior of defendant and Corbett documented throughout the record. There can be no dispute that such behavior is appalling and would be abhorrent to anyone living next door to them. Although Zane often telephoned the police regarding such behavior, the police would tell her that it was a “civil matter.” In any event, those telephone calls had no effect on Corbett’s behavior. Zane testified that, after the police came when she complained about Corbett shining a red light on her, he repeated that behavior after the police departed. At the conclusion of the trial, Supreme Court granted defendant’s motion for judgment as a matter of law against her, and directed that a judgment of no cause of action be entered in her favor. We agree with plaintiffs that the court erred in granting that part of defendant’s motion with respect to the sixth cause of action against her, for negligence, and we therefore modify the order and judgment accordingly. Plaintiffs alleged in that cause of action, inter alia, that defendant was negligent in allowing the willful and malicious conduct of Corbett to occur at her residence. “A property owner, or one in control or possession of real property, has the duty to control the conduct of those whom he [or she] permits to enter upon it. . . [,] provided that the owner knows that he [or she] can and has the opportunity to control the third-parties’ conduct and is reasonably aware of the necessity for such control” (Mangione v Dimino, 39 AD2d 128, 129 [1972]; see D’Amico v Christie, 71 NY2d 76, 85 [1987]). Plaintiffs presented evidence establishing not only that defendant was aware of Corbett’s conduct but that, as previously noted, she would join in and encourage his behavior. Defendant contends that she did not have the opportunity to control Corbett’s behavior because “ ‘[a] reasonable opportunity or effective means to control a third person does not arise from the mere power to evict’ that person as tenant” (Torre v Burke Constr., 238 AD2d 941, 942 [1997]). The evidence at trial, however, did not establish that defendant was Corbett’s landlord — 1606 — but, rather, it suggested that Corbett was simply defendant’s live-in boyfriend and thus was a guest on her property. Defendant further contends that she had no reason to be aware of the need to control Corbett because she did not know of any conduct by Corbett that endangered plaintiffs. The record belies that contention. Plaintiffs presented evidence that, inter alia, Corbett would shine a spotlight in Zane’s eyes as she drove her vehicle in and out of her driveway, which created an unreasonable risk of harm to her. Based on the testimony presented by plaintiffs, it cannot be said that “it would ... be utterly irrational for a jury to reach [a verdict in favor of plaintiffs]” on the negligence cause of action against defendant (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). We disagree with the dissent that plaintiffs cannot maintain the negligence cause of action against defendant because the harm to plaintiffs did not occur on defendant’s property. Under the circumstances of this case, we conclude that such a narrow definition of a landowner’s duty is untenable. Indeed, the facts in DeRyss v New York Cent. R.R. Co. (275 NY 85 [1937]) support our position. In that case, defendant Joseph M. Hard, an employee of the defendant railroad, was working on a signal bridge owned and controlled by the railroad (id. at 89-90). While working, Hard permitted a nonemployee of the railroad to climb up a ladder to the signal bridge and to use a rifle to shoot at ducks out in the river (id. at 90). In attempting to shoot the ducks, the nonemployee shot and killed the plaintiffs decedent, who was sitting in a blind on property not owned by the railroad (id.). The case proceeded to trial, and the court, inter alia, found that Hard was liable as a matter of law (id. at 91). On appeal, the Court of Appeals affirmed that finding of liability, concluding that, “[i]f Hard, having control of the premises and the situation, not only permitted, but invited [the nonemployee] to shoot at ducks in the river under circumstances and conditions [that] would indicate to a reasonably prudent [person] that it was dangerous to others so to do, he would be liable . . . for the consequences” (id. at 94). The Court determined that the issue was “whether reasonable care had been exercised” (id.). Thus, in DeRyss, the Court upheld a finding of liability against a person in possession of real property, despite the fact that the injury did not occur on that property. We thus conclude that it is of no moment that the injury to plaintiffs occurred on property owned by Zane, rather than on defendant’s property. In our view, the Court of Appeals did not intend to depart from its ruling in DeRyss in its subsequent decision in D’Amico v Christie, relied upon by the dissent. In D’Amico, the Court — 1607 — concluded that “[ljandowners in general have a duty to act in a reasonable manner to prevent harm to those on their property . . . [, including] a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control” (D’Amico, 71 NY2d at 85). The Court further concluded, however, that the “common-law doctrine relating to landowners’ liability for dangerous conditions on their [property] .. . [was] wholly inapposite to the facts of [that] case” (id. at 87), in which an intoxicated employee left a company picnic and was in a motor vehicle accident several miles away (id. at 81). Thus, that case did not involve injury to a person on property adjacent to property owned by the defendant, as in DeRyss (275 NY at 90). In addition, we note that the Court cited to DeRyss in its decision in D’Amico, thereby upholding the viability of that case (see D’Amico, 71 NY2d at 85). Indeed, more recent cases continue to rely on DeRyss in imposing liability on owners of property, even where the injuries occurred on adjacent property (see Murphy v Turian House, 232 AD2d 535 [1996]), and we believe the same result should occur here. Plaintiffs’ appeal from the order and judgment brings up for review the pretrial order granting in part defendant’s cross motion for summary judgment dismissing the second amended complaint against her and denying plaintiffs’ cross motion for leave to “supplement” the second amended complaint (see CPLR 5501 [a] [1]; Burke v Crosson, 85 NY2d 10, 15-16 [1995]). We agree with plaintiffs that the court erred in granting that part of defendant’s cross motion with respect to the fifth cause of action against her, for intentional infliction of emotional distress (IIED), and we therefore further modify the order and judgment accordingly. “The tort [of IIED] has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress” (Howell v New York Post Co., 81 NY2d 115, 121 [1993]). Defendant contends that she was entitled to summary judgment dismissing the IIED cause of action against her because she established that the first and fourth elements did not apply, and plaintiffs failed to raise an issue of fact with respect to those elements. We reject that contention. With respect to the first element, plaintiffs alleged in their second amended complaint that, “[o]n a constant and even daily basis, the [defendants, without any just cause or provocation, [would] shout obscenities, vulgarities and use obscene nonverbal — 1608 — gestures directed at [plaintiffs],” videotape plaintiffs, and harass guests visiting plaintiffs. In their bill of particulars, plaintiffs gave specific examples of defendant’s conduct directed at plaintiffs. In support of her cross motion, defendant submitted the deposition testimony of Zane, which in fact supported the allegation of plaintiffs that defendant’s conduct, which was repeated and often directed at the infant plaintiffs, was extreme and outrageous (cf. Poliah v Westchester County Country Club, Inc., 14 AD3d 601 [2005]; Harville v Lowville Cent. School Dist., 245 AD2d 1106 [1997], lv denied 92 NY2d 808 [1998]). With respect to the fourth element of IIED, i.e.,-severe emotional distress, plaintiffs alleged that they “suffered fear, stress, pain, emotional upset, [and] great mental anguish.” Again, in support of her cross motion, defendant submitted the deposition testimony of Zane that she consulted with her physician regarding her anxiety as a result of defendant’s behavior and thus submitted evidence supporting the allegations of plaintiffs. Based on that testimony and the allegations in the pleadings, we conclude that defendant failed to meet her initial burden of establishing her entitlement to judgment as a matter of law dismissing the IIED cause of action against her with respect to Zane (see generally Cavallaro v Pozzi, 28 AD3d 1075, 1079 [2006]). Even assuming, arguendo, that defendant met her initial burden on those parts of the cross motion concerning the IIED cause of action against her with respect to Zane-Morreale and the infant plaintiffs, we further conclude that plaintiffs raised a triable issue of fact regarding the fourth element of IIED with respect to those plaintiffs. In opposition to the cross motion, plaintiffs submitted the deposition testimony of ZaneMorreale, who testified that she suffered from sleeplessness and headaches as a result of defendants’ conduct. She also testified that the younger infant plaintiff was treated by a medical provider because of defendants’ conduct. We therefore conclude that “there exist[ed a special] likelihood of genuine and serious mental distress, arising from the special circumstances” (Garcia v Lawrence Hosp., 5 AD3d 227, 228 [2004] [internal quotation marks omitted]). As we noted above, the harassment and outrageous conduct perpetrated by defendants against plaintiffs was unrelenting and lasted over V-h years, and there is at a minimum an issue of fact whether severe emotional distress would result from that conduct. Finally, plaintiffs, as limited by their brief on appeal, contend that the court erred in denying those parts of their cross motion seeking leave to supplement the second amended complaint only with respect to the fifth and sixth causes of action to — 1609 — include allegations of wrongdoing by defendants after the filing of the second amended complaint. We agree with plaintiffs, and we therefore further modify the order and judgment accordingly. It is well settled that, “[i]n the absence of prejudice or surprise, leave to [supplement] a pleading should be freely granted” (Boxhorn v Alliance Imaging, Inc., 74 AD3d 1735, 1735 [2010]; see Bryndle v Safety-Kleen Sys., Inc., 66 AD3d 1396 [2009]). Here, defendant cannot claim surprise or prejudice by the addition of such factual allegations, which did not form the basis for any new causes of action. All concur except Scudder, EJ., and Garni, J., who dissent in part and vote to affirm in the following memorandum.