Bunker v. Testa

Decision Date30 December 1996
Citation234 A.D.2d 1004,652 N.Y.S.2d 181
PartiesAnne E. BUNKER and William Cadwallader, Appellants-Respondents, v. Sam TESTA, Respondent-Appellant.
CourtNew York Supreme Court — Appellate Division

Melvin and Melvin, LLP by Douglas Young, Syracuse, for Appellants-Respondents.

Michaels and Michaels by Martin Michaels, Syracuse, for Respondent-Appellant.

Before DENMAN, P.J., and LAWTON, FALLON, DOERR and BALIO, JJ.

MEMORANDUM.

Supreme Court properly dismissed the harassment cause of action. "[W]here 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" (Nader v. General Motors Corp., 25 N.Y.2d 560, 569, 307 N.Y.S.2d 647, 255 N.E.2d 765).

The court also properly dismissed the assault cause of action. Taking plaintiffs' allegations as true, as we must (see, Morone v. Morone, 50 N.Y.2d 481, 484, 429 N.Y.S.2d 592, 413 N.E.2d 1154), no cause of action for assault has been stated because the actions complained of did not cause an " 'imminent apprehension' of 'harmful or offensive contact' " (Hayes v. Schultz, 150 A.D.2d 522, 523, 541 N.Y.S.2d 115).

Finally, the court properly refused to dismiss the causes of action alleging intentional infliction of emotional distress and a derivative loss of services to plaintiff William Cadwallader. Contrary to defendant's assertions, the complaint alleges intentional acts by defendant, including yelling and gesturing obscenely at plaintiff Anne E. Bunker, following her home, refusing to leave the premises, following her children and family around and telling her that he knew where the children went to school and when they got out of school. Those alleged acts constitute conduct " ' "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" ' " (Howell v. New York Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699).

Order unanimously affirmed without costs.

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6 cases
  • Koulkina v. City of New York
    • United States
    • U.S. District Court — Southern District of New York
    • February 19, 2008
    ...home, and told plaintiff that he knew where her children went to school and when they got out of school, Bunker v. Testa, 234 A.D.2d 1004, 1004, 652 N.Y.S.2d 181, 182 (4th Dep't 1996); and where defendant allegedly made numerous phone calls to plaintiff and hung up when someone answered the......
  • Naughright v. Weiss
    • United States
    • U.S. District Court — Southern District of New York
    • November 18, 2011
    ...or apprehensive that imminent offensive contact could occur, there can be no claim for assault. See e.g., Bunker v. Testa, 234 A.D.2d 1004, 1005, 652 N.Y.S.2d 181 (4th Dep't 1996) (no cause of action for assault stated because the actions complained of did not cause the plaintiff imminent a......
  • Reyes v. Fairfield Properties
    • United States
    • U.S. District Court — Eastern District of New York
    • September 24, 2009
    ...juncture, that an amendment of the pleadings to contain those allegations would be futile, see, e.g., Bunker v. Testa, 234 A.D.2d 1004, 1004, 652 N.Y.S.2d 181 (N.Y.App.Div.1996) (refusing to dismiss claim where the defendant allegedly yelled and gestured obscenely at plaintiff, followed her......
  • Hodge ex rel. Skiff v. Hodge
    • United States
    • U.S. District Court — Northern District of New York
    • December 1, 1999
    ...emotional distress]."), leave to appeal dismissed, 93 N.Y.2d 958, 694 N.Y.S.2d 635, 716 N.E.2d 700 (1999); Bunker v. Testa, 234 A.D.2d 1004, 652 N.Y.S.2d 181, 182 (4th Dep't 1996) (requiring a "deliberate and malicious campaign of harassment or intimidation"); Bell v. Slepakoff, 224 A.D.2d ......
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