Callarama v. Associates Discount Corp. of Del.

• Decision Date: 03 March 1972
• Citation: 69 Misc.2d 287,329 N.Y.S.2d 711
• Parties: Alphonse F. CALLARAMA and Betty Callarama, Plaintiffs, v. ASSOCIATES DISCOUNT CORPORATION OF DELAWARE, INC., Defendant.
• Court: New York Supreme Court

Page 711

329 N.Y.S.2d 711

69 Misc.2d 287

Alphonse F. CALLARAMA and Betty Callarama, Plaintiffs, v. ASSOCIATES DISCOUNT CORPORATION OF DELAWARE, INC., Defendant.

Supreme Court, Monroe County.

March 3, 1972.

[69 Misc.2d 288] Fudeman & Renaldo, Buffalo (Irving Fudeman, Buffalo, of counsel), for plaintiffs.

Nixon, Hargrave, Devans & Doyle, Rochester (John B. McCrory, Rochester, of counsel), for defendant.

DECISION

EMMETT J. SCHNEPP, Justice.

The defendant moved to dismiss the first two causes of action in the complaint on the grounds that they are legally insufficient and to dismiss the entire complaint because the causes of action are barred by the Statute of Limitations.

In this case, still in the pleading stage, the plaintiff Alphonse F. Callarama, in his first cause of action seeks compensatory and punitive damages for emotional distress and personal injuries suffered from 'unjustified damaging, threatening, harassing and malicious telephone calls and statements' made by defendant to plaintiffs and various relatives and from threats and abuse and the use of 'obscene, vicious and opprobrious language'. The second cause of action pleaded on behalf of the plaintiff, Betty Callarama is derivative in nature only. Plaintiffs' third cause of action seeks recovery for the publication of false and defamatory words--conceded to be an action sounding in slander.

On this motion the allegations of the complaint are deemed true. (Kober v. Kober, 16 N.Y.2d 191, 193, 264 N.Y.S.2d 364, 365, 211 N.E.2d 817, 818). It thus appears that plaintiffs owed an unpaid balance on a retail installmentcontract. On and before June 12, 1970, agents of the defendant made these telephone calls and statements which it is claimed were malicious and as a result the plaintiff Alphonse suffered severe emotional distress, humiliation with psychic shock and physical injuries, including a posterior myocardial infarction.

Recovery is sought in tort and the question is whether threatening and harassing statements combined with the use of obscene and opprobious language made maliciously and resulting in damage are actionable. Can there be a recovery for the malicious infliction of emotional distress resulting in personal injuries without proof of the breach of any duty other than the duty to refrain from inflicting it?

Intent or recklessness is an essential element in torts which is characterized as outrageous conduct causing mental disturbance. (2 N.Y. PJI 617--619). A malicious act requires a wrongful motive and an intent to harm. The word 'malice' adds color to intent and embraces within its meaning an intent to do evil. The fact that the complaint does not contain the word 'intent' so that it 'does not fall plainly within the rule announced in some decided case does not require the dismissal of the complaint'. (Halio v. Lurie, 15 A.D.2d 62, 67, 222 N.Y.S.2d 759, 764). Novel causes need not be dismissed because they are novel and torts are infinitely various and are not limited or confined. Redress should be provided for any demonstrated wrong. (Caso v. Gotbaum, 67 Misc.2d 205, 211, 323 N.Y.S.2d 742, 749). This rule that there must be a remedy for the commission of a cognizable wrong has been limited by various practical difficulties such as proliferation of claims, fraudulent claims, speculative damages or injuries, problems of unlimited liability, foreseeability, unduly burdensome liability and the difficulty of circumscribing the area of liability within tolerable limits. (Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419). 'Freedom from mental disturbance is now a protected interest in this State' (Ferrara v. Galluchio, 5 N.Y.2d 16, 21, 176 N.Y.S.2d 996, 999, 152 N.E.2d 249, 252) and any objection against recovery due to any of the practical difficulties described above is offset by the fact that emotional upsets are marked by definite physical symptoms which are capable of proof. As was pointed out in Ferrara (supra, p. 21, 176 N.Y.S.2d p. 1000, 152 N.E.2d p. 252) "the very clear tendency of the recent cases is to refuse to admit incompetence to deal with such a problem, and to...