Neufeld v. Neufeld, 93 Civ. 8131 (CBM).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtCharles H. Law, Jr., New York City, for Defendant
Citation910 F. Supp. 977
PartiesShirley NEUFELD, et al., Plaintiffs, v. Jacob NEUFELD, Defendant.
Docket NumberNo. 93 Civ. 8131 (CBM).,93 Civ. 8131 (CBM).
Decision Date23 January 1996


Charles H. Knull, Law Office of Charles Knull, New York City, for Plaintiffs.

Charles H. Law, Jr., New York City, for Defendant.


MOTLEY, District Judge.

Defendant in this diversity suit for intentional infliction of emotional distress has moved, inter alia, for dismissal of the complaint on statute of limitations grounds. Although many of the acts at the heart of plaintiffs' case did occur prior to the time within which this action should have been commenced under the appropriate New York limiting statute, plaintiffs allege that the acts complained of are part and parcel of a single, continuing tort, thus exempting them from the statute of limitations bar. New York law recognizes that allegations of a continuing tort may toll otherwise applicable statutes of limitation. As the following discussion shows, plaintiffs' allegations that defendant engaged in a concerted campaign over several years to damage the mental capacity of plaintiffs are sufficient to make out a timely cause of action for continuing tort based on intentional infliction of emotional distress.

Defendant contends that because an amendment to the complaint should not "relate back" to the date of the commencement of the action, such amendment should be disallowed as time-barred. Lastly, defendant argues that venue is improper in this district. For the reasons stated herein, both of these arguments also fail.


Plaintiffs Shirley and Nettie Neufeld filed this tort action alleging intentional infliction of emotional distress arising out of the campaign of harassment and mental abuse waged by defendant Jacob Neufeld, Shirley Neufeld's half-brother and Nettie Neufeld's son.

By previous order, this court denied defendant's prior motion to dismiss for failure to state a claim upon which relief can be granted.1 Although the facts of the instant case are set forth in this prior opinion, the following is a recitation of those matters pertinent to the instant motion.

Since this court's prior decision in the instant case, plaintiffs have twice amended their complaint. Through these amendments, Nettie Neufeld was added as a plaintiff and greater detail was provided concerning the time-frame in which certain actions occurred. (See Amended Complaint, dated July 13, 1995, at ¶ 2; Second Amended Complaint, dated October 6, 1995, (hereinafter "the Complaint"), at ¶ 17(G) and (H)).

The Complaint in its current form alleges that Nettie Neufeld and her husband, Israel Neufeld, each executed wills naming Shirley Neufeld as executrix and leaving fifty percent of their estate to plaintiff, twenty-five percent to plaintiff's sister, Ann Hirsch, and twenty-five percent to defendant. Nettie and Israel Neufeld each executed codicils to their wills that provided that anyone attempting to contest the wills would be disinherited.

In 1991, prior to the death of Israel Neufeld, defendant allegedly coerced Shirley Neufeld to provide him access to the wills, which were under her control. Upon reading the wills, defendant became irate because he was not named executor and felt that these wills should have been more generous to him. Soon after defendant learned of the contents of Nettie and Israel Neufeld's wills, Israel Neufeld died. (Complaint at ¶ 11.)

It is alleged that "both prior to and subsequent to the death of Israel Neufeld" defendant "intentionally schemed and engaged in activities designed to cause emotional disturbance and physical harm" to plaintiffs in an effort to upset them emotionally, so that Shirley Neufeld would suffer a nervous breakdown and defendant would gain control of all of Nettie Neufeld's assets. (Complaint at ¶¶ 12-13.)2

Additionally, defendant engaged in the following acts designed to bring about the same end:

1. In July of 1991, defendant allegedly drugged Nettie Neufeld, brought her to Maryland and had her confined to a psychiatric institute there. Shirley Neufeld was forced to go to Maryland and engage local counsel to obtain the court-ordered release of her mother in September 1991. The trauma Nettie suffered from this experience has allegedly left her confined to a wheelchair. (Complaint at ¶ 17(A)-(E).)

2. In July of 1991, defendant allegedly attempted to gain control over an account in Nettie Neufeld's name in a Brooklyn, New York branch of Chemical Bank by falsely communicating to an employee of the bank that Shirley Neufeld's power of attorney for Nettie Neufeld was being challenged. (Complaint at ¶ 17(F).)

3. Beginning in December of 1992, defendant allegedly contacted various agencies and governmental bodies, such as the New York City Police Department, the Social Services Division of the City of New York, and Protective Services of the City of New York, and made false complaints against Shirley Neufeld, claiming that she was mistreating Nettie Neufeld. Defendant, who is employed by the United States Department of the Air Force at the Pentagon, allegedly used the auspices of his position with the United States Government to influence the New York City agencies to investigate Shirley Neufeld and her alleged treatment of Nettie Neufeld. The agencies, it is alleged, have been prompted to investigate Shirley Neufeld's treatment of Nettie Neufeld based on defendant's complaints. (Complaint at ¶ 17(G) and (I).)

4. On several occasions beginning in July 1993, defendant's children, at defendant's insistence, threatened the live-in health aide hired by Shirley Neufeld to help care for her mother. (Complaint at ¶ 17(H).)

A. Applicable Statute of Limitations.

In a suit based on diversity of citizenship, a federal court applies the substantive law of the forum state: including, inter alia, the same statute of limitations that a court in that state would apply. See e.g., Personis v. Oiler, 889 F.2d 424, 426 (2d Cir.1989) and cases cited therein. Because plaintiffs in this action are New York residents, their claims are based on New York tort law, and their cause of action accrued within the State, New York law requires that New York's statute of limitations controls. Hoelzer v. City of Stamford, CT., 933 F.2d 1131, 1135-1136 (2d Cir.1991); Diffley v. Allied-Signal, Inc., 921 F.2d 421, 423 (2d Cir. 1990).

In New York, claims of intentional tort such as those alleging intentional infliction of emotional distress (IIED) are subject to a one-year limitations period. N.Y.Civ.Prac.L. & R. § 215(3). Ornstein v. Pakistan International Airlines Corporation, 888 F.Supp. 28, 31 n. 11 (S.D.N.Y.1995); Janneh v. Regency Hotel, Binghamton, 870 F.Supp. 37, 40 (N.D.N.Y.1994); Kelber v. Forest Elec. Corp., 799 F.Supp. 326, 340-341 (S.D.N.Y.1992); Jones v. City of New York, 161 A.D.2d 518, 519, 555 N.Y.S.2d 788 (1st Dep't 1990); Gallagher v. Directors Guild of America, 144 A.D.2d 261, 262-263, 533 N.Y.S.2d 863 (1st Dep't 1988), appeal denied, 73 N.Y.2d 708, 540 N.Y.S.2d 1003, 538 N.E.2d 355 (1989).

The original complaint in this action was filed on November 24, 1993. Many of the alleged acts upon which the Complaint is based took place prior to one year before commencement of the action and relief based on these acts would normally be time-barred. Defendant also argues that those allegations that are timely should be dismissed because, standing alone, they fail to set forth a cause of action for IIED.3

B. The Statute of Limitations and Continuous Torts.

In order to evade these fatal results, plaintiff argues that the Complaint sets forth sufficient facts to show a continuing tort and thus plaintiff may maintain this action based on acts that occurred prior to the statute of limitations window.4

Generally, under New York law, "`(d)espite the general principle that a cause of action accrues when the wrong is done, regardless of when it is discovered, certain wrongs are considered to be continuous wrongs, and the statute of limitations, therefore, runs from the commission of the last wrongful act.'" Leonhard v. United States, 633 F.2d 599, 613 (2d Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981) (citations omitted and alteration in original); Thomas v. City of New York, 814 F.Supp. 1139, 1153 (E.D.N.Y.1993); Summers v. County of Monroe, 147 A.D.2d 949, 537 N.Y.S.2d 703 (4th Dep't 1989), appeal dismissed 74 N.Y.2d 735, 544 N.Y.S.2d 819, 543 N.E.2d 84 (1989); cf. Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir.1994) (holding, in action under 42 U.S.C. §§ 1983 and 1985, that under federal law, where a specific pattern and practice of discriminatory conduct can be shown, "plaintiff is entitled to bring suit challenging all conduct that was a part of that violation, even conduct that occurred outside the limitations period").

Although New York law generally recognizes that the applicable statute of limitations will be tolled until a continuing harm ceases,5 conflict exists over the application of this doctrine where claims of intentional infliction of emotional distress are raised. See Foley v. Mobil Chemical Co., 214 A.D.2d 1003, 626 N.Y.S.2d 906, 907-908 (4th Dep't 1995) (holding plaintiff in IIED action could not use non-actionable conduct occurring within the statute of limitations period to resurrect claim for actionable conduct occurring prior to the statute of limitations bar);6 Drury v. Tucker, 210 A.D.2d 891, 892, 621 N.Y.S.2d 822 (4th Dep't 1994) (holding IIED action not time-barred because "plaintiff sufficiently set forth concrete factual allegations of a continuing course of conduct that terminated within one year" of commencement of the action); Misek-Falkoff v. International Business Machines, 162 A.D.2d 211, 556 N.Y.S.2d 331 (1st Dep't 1990), appeal denied, 76 N.Y.2d 708, 560 N.Y.S.2d 990, 561 N.E.2d 890 (1990) (holding that...

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