Baron v. Jeffer
| Decision Date | 30 December 1983 |
| Citation | 98 A.D.2d 810,469 N.Y.S.2d 815 |
| Parties | Iris BARON, Respondent, v. David JEFFER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Landa, Picard & Weinstein, Lake Success (Jay Landa, Lake Success, of counsel), for appellant.
Robert A. Ugelow, Brooklyn, for respondent.
Before DAMIANI, J.P., and LAZER, GULOTTA and BRACKEN, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages for assault and the intentional infliction of emotional distress, defendant appeals from an order of the Supreme Court, Richmond County, dated November 17, 1982, which denied his motion for summary judgment dismissing the first and third causes of action asserted in plaintiff's amended verified complaint.
Order reversed, on the law, without costs or disbursements, motion granted and plaintiff's first and third causes of action dismissed.
In her first cause of action, plaintiff alleges that on November 20, 1979 she was assaulted by the defendant, with whom she was then residing as if married. By judgment dated May 6, 1981 an action based upon the same assault was dismissed for lack of personal jurisdiction over the defendant and on June 21, 1982, this court affirmed that judgment (Jeffer v. Jeffer, 88 A.D.2d 1114, 451 N.Y.S.2d 949). The present action was commenced on or about April 28, 1981, i.e., more than 17 months after the date of the alleged assault.
Under the circumstances of this case, we find no merit in plaintiff's contention that there are triable issues of fact regarding whether the defendant should be estopped from asserting the one year Statute of Limitations as an affirmative defense to her first cause of action. The history of this litigation clearly indicates that the plaintiff did not forbear in pursuing her legal remedies against the defendant as a result of his alleged misrepresentations regarding, e.g., his willingness to make restitution. Plaintiff's claim of estoppel is conclusively refuted by the fact that she attempted, albeit unsuccessfully, to timely commence the prior action against him. Accordingly we hold that plaintiff's first cause of action is barred by the Statute of Limitations (CPLR 215, subd. 3).
Turning our attention to the third cause of action, plaintiff alleges that the defendant had intentionally inflicted emotional distress upon her during the course of their relationship as lovers living together. In Weicker v. Weicker, 22 N.Y.2d 8, 11, 290 N.Y.S.2d 732, 237 N.E.2d 876, an interspousal action, the Court of Appeals stated:
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...persons who, although not married, have been living together as husband and wife for an extended period of time." Baron v. Jeffer, 98 A.D.2d 810, 811, 469 N.Y.S.2d 815. To the same effect, see also Artache v. Goldin, 133 A.D.2d 596, 600, 519 N.Y.S.2d 702. As the court declared in Jose F. v.......
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..." however, the inter-spousal immunity doctrine may not be applicable. See Murphy, 109 A.D.2d at 966. But see Baron v. Jeffer, 98 A.D.2d 810, 811, 469 N.Y.S.2d 815 (2d Dep't 1983) (holding that the policy concerns articulated in Weicker precluded IIED claim where parties were unmarried, but ......
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Ferreyr v. Soros
...has held that where there is a “relationship as lovers living together” such a cause of action does not lie. Baron v. Jeffer, 98 A.D.2d 810, 811, 469 N.Y.S.2d 815 (2d Dept 1983); Artache v. Goldin, 133 A.D.2d 596, 600, 519 N.Y.S.2d 702 (2d Dept 1987). In Baron, the Court considering plainti......
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Pickering v. Pickering
...N.J.Super. 328, 343 A.2d 166 (Law Div.1975); Artache v. Goldin, 133 A.D.2d 596, 519 N.Y.S.2d 702 (2 Dept.1987); Baron v. Jeffer, 98 A.D.2d 803, 469 N.Y.S.2d 815 (2 Dept.1983); Weicker v. Weicker, 22 N.Y.2d 8, 290 N.Y.S.2d 732, 237 N.E.2d 876 (1968). Furthermore, the law of this state alread......