Annozine v. Collins
| Decision Date | 21 November 2012 |
| Docket Number | Index No. 112461/2010 |
| Parties | MARTINE ANNOZINE, Plaintiff v. ALPHONZO COLLINS, 50 WEST 112TH STREET HOUSING DEVELOPMENT FUND CORPORATION, FORCE ONE INTERNATIONAL SECURITY & CONSULTANT FIRM, INC., FORCE ONE SECURITY GROUP, INC., FORCE ONE SECURITY SOLUTION LTD., and "FORCE ONE," Defendants |
| Court | New York Supreme Court |
DECISION AND ORDER
Defendant 50 West 112th Street ___ Development Fund Corporation (HDFC) moves to vacate its default in opposing plaintiff's motion for a default judgment, which resulted in the court's order dated June 18, 2012, granting plaintiff's motion for a default judgment on liability against both defendant Collins and defendant HDFC. C.P.L.R. § 3215(d). In a stipulation dated July 18, 2012, plaintiff and defendant HDFC agreed to the relief sought by defendant HDFC's motion, vacating its default in opposing the motion, restoring the motion against defendant HDFC for the court's redetermination, and thus vacating the default judgment against defendant HDFC.
Plaintiff's affidavit supporting her motion for a default judgment attests simply that, in November 2007, New York County, when "I was harassed, annoyed and/or threatened by the defendant Alphonzo Collins, an agent, servant and/or employee of his co-defendants." Pl.'s Aff. of Merit ¶ 2. Her unverified complaint alleges claims against defendant HDFC for harassment; of vicarious liability for Collins's intentional and negligent infliction of emotional distress, assault, negligence, and prima facie tort; and for negligent supervision of Collins and negligent provision of security at 50 West 112th Street.
Even assuming plaintiff's attestation that Collins was co-defendants' agent or employee adequately specifies that he was defendant HDFC's agent or employee, the remainder of her affidavit, her only admissible evidence, fails to support her claims against this defendant. First, harassment is not a cognizable civil claim, Jerulee Co. v. Sanchez, 43 A.D.3d 328, 329 (1st Dep't 2007); Hartman v. 536/540 E. 5th St. Equities, Inc., 19 A.D.3d 240 (1st Dep't 2005), except under specific statutory and regulatory provisions that plaintiff does not rely on and do not apply here. Jerulee Co. v. Sanchez, 43 A.D.3d at 329.
Second, even if defendant HDFC may be vicariously liable for Collins's intentional as well as negligent conduct, plaintiff fails to support either intentional or negligent infliction of emotional distress by Collins. To establish Collins's intentional infliction of emotional distress, plaintiff must show(1) that Collins engaged in extreme and outrageous conduct, (2) with intent to cause or in disregard of a substantial probability that the conduct would cause severe emotional distress, (3) a causal connection between his acts and plaintiff's injury, and (4) severe emotional distress. Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993); Suarez v. Bakalchuk, 66 A.D.3d 419 (1st Dep't 2009). Negligent infliction of emotional distress must be based on Collins's breach (1) of a duty owed to plaintiff (2) that unreasonably endangered her or caused her to fear for her own safety. Bernstein v. East 51st St. Dev. Co., LLC, 78 A.D.3d 590, 591 (1st Dep't 2010); Sheila C. v. Povich, 11 A.D.3d 120, 130 (1st Dep't 2004). Extreme and outrageous conduct is also an element of negligent infliction of emotional distress. Bernstein v. East 51st St. Dev. Co., LLC, 78 A.D.3d at 592; Lau v, S&M Enters., 72 A.D.3d 497, 498 (1st Dep't 2010); Goldstein v. Massachusetts Mut. Life Ins. Co., 60 A.D.3d 506, 508 (1st Dep't 2009); Berrios v. Our Lady of Mercy Med. Ctr., 20 A.D.3d 361, 362 (1st Dep't 2005).
To support the element of extreme and outrageous conduct, plaintiff must show that Collins's conduct was "beyond all possible bounds of decency" and "utterly intolerable in a civilized community." Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 N.Y.3d 15, 22-23 (2008); Howell v. New York Post Co.. 81 N.Y.2d at 122; Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303 (1983); Suarez v. Bakalchuk, 66 A.D.3d 419. Plaintiff's mere attestation thatCollins "harassed, annoyed and/or threatened" her does not amount to extreme and outrageous conduct. Pl.'s Aff. of Merit ¶ 2.
Although plaintiff suggests that Collins breached a duty to provide her security, she fails to show that he unreasonably endangered her safety or caused her to fear for her safety. Bernstein v. East 51st St. Dev. Co., LLC, 78 A.D.3d at 591. For all these reasons, plaintiff's claims for intentional and negligent infliction of emotional distress fail. Lau v. S&M Enters., 72 A.D.3d at 498; Goldstein v. Massachusetts Mut. Life Ins. Co., 60 A.D.3d at 508; McRedmond v. Sutton Place Rest. & Bar, Inc., 48 A.D.3d 258, 259 (1st Dep't 2008); Berrios v. Our Lady of Mercy Med. Ctr., 20 A.D.3d at 362-63.
Plaintiff's assault claim requires a showing of physical conduct causing plaintiff apprehension of immediate harmful contact. Nicholson v. Luce, 55 A.D.3d 416 (1st Dept 2008); Holtz v. Wildenstein & Co., 261 A.D.2d 336 (1st Dep't 1999); Charkhy v. Altman, 252 A.D.2d 413, 414 (1st Dep't 1998); Hassan v. Marriott Corp., 243 A.D.2d 406, 407 (1st Dep't 1997). Her assault claim suffers from at least two deficiencies. First, plaintiff nowhere alleges any physical conduct that caused an apprehension of harmful contact. Hassan v. Marriott Corp., 243 A.D.2d at 407. See Nicholson v. Luce, 55 A.D.3d 416. Second, she fails to show that Collins posed any threat of immediate harmful contact. Holtz v. Wildenstein & Co., 261 A.D.2d 336.
To support the prima facie tort claim, plaintiff must show that Collins (1) intentionally inflicted harm, (2) causingspecial damages, (3) without justification or excuse, (4) by otherwise lawful acts. Posner v. Lewis, 18 N.Y.3d 566, 570 n.l (2012); Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142-43 (1985); Curiano y. Suozzi, 63 N.Y.2d 113, 117 (1984); Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 332 (1983). She must attest to a "specific and measurable loss" from the tortious conduct to establish special damages. Freihofer v. Hearst Corp., 65 N.Y.2d at 143. See Curiano v. Suozzi, 63 N.Y.2d at 117; DeMicco Bros., Inc. v. Consolidated Edison Co. of N.Y., Inc., 8 A.D.3d 99, 100 (1st Dep't 2004); Vigoda v. DCA Prods. Plus, 293 A.D.2d 265, 266 (1st Dep't 2002); Havell v. Islam, 292 A.D.2d 210 (1st Dep't 2002). Malevolence must be the sole motivation for defendant's injurious actions. Posner v. Lewis, 18 N.Y.3d at 570 n.l; Curiano v. Suozzi, 63 N.Y.2d at 117; Burns Jackson Miller & Spitzer v. Lindner, 59 N.Y.2d at 333.
Plaintiff fails to specify that Collins's only purpose in harassing, annoying, or threatening her was a disinterested malevolence. Even if that conduct itself demonstrates the sole intent to injure her, Havell v. Islam, 292 A.D.2d 210; Smukler v. 12 Lofts Realty, 156 A.D.2d 161, 163 (1st Dep't 1989); Rad Adv. v. United Footwear Org., 154 A.D.2d 309, 310 (1st Dep't 1989), her affidavit nowhere alleges the requisite harm and special damages required to sustain her prima facie tort claim.
Finally, insofar as plaintiff claims defendant HDFC, as Collins's employer, is vicariously liable for his intentional, culpable acts, her allegations fail to indicate (1) how hisemployer instigated, authorized, or at least condoned those acts, Taylor v. United Parcel Serv., Inc., 72 A.D.3d 573 (1st Dep't 2010); Velasquez-Spillers v. Infinity Broadcasting Corp., 51 A.D.3d 427 (1st Dep't 2008), or (2) how they related to his employer's business or his job duties, rather than his own personal objectives. Delran v. Prada USA Corp., 23 A.D.3d 308 (1st Dep't 2005); HT Capital Advisors v. Optical Resources Group, 276 A.D.2d 420 (1st Dep't 2000); Beattie v. Brown & Wood, 243 A.D.2d 395 (1st Dep't 1997). See N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251-52 (2002); Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933 (1999); White v. Hampton Mat. Co. L.L.C., 35 A.D.3d 243, 244 (1st Dep't 2006); Dykes v. McRoberts Protective Agency, 256 A.D.2d 2, 3-4 (1st Dep't 1998). If anything, her allegations indicate conduct that directly contravened the employer's interests and the employee's duties in carrying out their alleged shared responsibility for security: an "obvious departure from the normal duties" of security personnel to the tenants who are to be provided security. White v. Hampton Mgt. Co. L.L.C., 35 A.D.3d at 244. See N.X. v. Cabrini Med. Ctr., 97 N.Y.2d at 251; Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d at 933; Dykes v. McRoberts Protective Agency, 256 A.D.2d at 4.
To sustain the claim for negligent supervision, plaintiff must show that defendant HDFC, as Collins's employer, received notice, actual or constructive, of the employee's tortious propensities to cause plaintiff's injury. Coffey v. City of NewYork, 49 A.D.3d 449, 450 (1st Dep't 2008); White v. Hampton Mgt. Co. L.L.C., 35 A.D.3d at 244; Nunez v. Caryl & Broadway, Inc., 30 A.D.3d 249, 250 (1st Dep't 2006); Chagnon v. Tyson, 11 A.D.3d 325, 326 (1st Dep't 2004). In short, defendant HDFC may be held liable only if it knew or had reason to know of Collins's propensity to harass, annoy, or threaten residents of the building where defendants allegedly were responsible for security. Taylor v. United Parcel Serv., Inc., 72 A.D.3d at 574; Pinkney v. City of New York, 52 A.D.3d 242, 243 (1st Dep't 2008).
Plaintiff nowhere attests that defendant HDFC knew or had reason to know of any prior criminal or other unlawful conduct by Collins or any history that he had been fired or separated from previous employment due to such...
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