Otero v. Hous. St. Owners Corp.
| Decision Date | 21 February 2012 |
| Docket Number | No. 104819/2010.,104819/2010. |
| Citation | 961 N.Y.S.2d 359,2012 N.Y. Slip Op. 52015,37 Misc.3d 1212 |
| Parties | Georgia OTERO and Jorge Otero, Plaintiffs, v. HOUSTON STREET OWNERS CORP., Chaim Babad, Babad Management Co., and Houston Street Management Co., Defendants. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Leonard Flamm Esq., New York, for Plaintiffs.
Jordan Sklar Esq., Babchik & Young, LLP, White Plains, for Defendants.
Plaintiffs sue to recover damages for invasion of privacy from defendants' installation of cameras on premises where plaintiffs were tenants. Defendants Chaim Babad and Houston Street Owners Corp. owned and defendants Babad Management Co. and Houston Street Management Co. managed the premises. Defendants move to dismiss the complaint on the grounds of a documentary defense and failure to state a claim. C.P.L.R. § 3211(a)(1) and (7). The court grants defendants' motion to the extent set forth and for the reasons explained below.
Plaintiffs allege that defendants' installation of a camera near plaintiffs' apartment entrance invaded their privacy and caused damages based on several theories. Defendants claim that plaintiffs lacked a reasonable expectation of privacy in the hallway accessible to the public and that the camera recorded only the hallway outside the apartment, as a device to determine who in fact resided in the apartment.
The court may dismiss a complaint where documentary evidence utterly refutes plaintiffs' allegations and conclusively establishes a defense as a matter of law. Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561, 571, 807 N.Y.S.2d 583, 841 N.E.2d 742 (2005); Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (2002); 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152, 746 N.Y.S.2d 131, 773 N.E.2d 496 (2002); McCully v. Jersey Partners, Inc., 60 A.D.3d 562, 876 N.Y.S.2d 27 (1st Dep't 2009). Upon defendants' motion to dismiss claims pursuant to C.P.L.R. § 3211(a)(1) or (7), the court may not rely on facts alleged by defendant to defeat the claims unless the evidence demonstrates the absence of any significant dispute regarding those facts and completely negates the allegations against defendants. Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595, 873 N.Y.S.2d 517, 901 N.E.2d 1268 (2008); Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d at 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190;Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 (1994); Yoshiharu Igarashi v. Shohaku Higashi, 289 A.D.2d 128, 735 N.Y.S.2d 33 (1st Dep't 2001). The court must accept the complaint's allegations as true, liberally construe them, and draw all reasonable inferences in plaintiffs' favor. Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 (2007); Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d at 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190;Harris v. IG Greenpoint Corp., 72 A.D.3d 608, 609, 900 N.Y.S.2d 44 (1st Dep't 2010); Vig v. New York Hairspray Co., L.P., 67 A.D.3d 140, 144–45, 885 N.Y.S.2d 74 (1st Dep't 2009). In short, the court may dismiss a claim based on C .P.L.R. § 3211(a)(7) only if the allegations completely fail to state a claim. Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;Harris v. IG Greenpoint Corp., 72 A.D.3d at 609, 900 N.Y.S.2d 44;Frank v. DaimlerChrysler Corp., 292 A.D.2d 118, 121, 741 N.Y.S.2d 9 (1st Dep't 2002); Scott v. Bell Atl. Corp., 282 A.D.2d 180, 183, 726 N.Y.S.2d 60 (1st Dep't 2001).
To establish plaintiffs' claim of intentional infliction of emotional distress, plaintiffs must show (1) defendants 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 defendants' acts and plaintiffs' injury, and (4) severe emotional distress. Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993); Suarez v. Bakalchuk, 66 A.D.3d 419, 887 N.Y.S.2d 6 (1st Dep't 2009). To support the first element alone, plaintiffs must show that defendants' 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, 862 N.Y.S.2d 311, 892 N.E.2d 375 (2008); Howell v. New York Post Co., 81 N.Y.2d at 122, 596 N.Y.S.2d 350, 612 N.E.2d 699;Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983); Suarez v. Bakalchuk, 66 A.D.3d 419, 887 N.Y.S.2d 6.
Defendants' commission of a criminal offense may support a finding of outrageous conduct. See Roe v. Barad, 230 A.D.2d 839, 840, 647 N.Y.S.2d 14 (2d Dep't 1996); Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 55, 559 N.Y.S.2d 336 (2d Dep't 1990). The New York Penal Law violation plaintiffs rely on, however, proscribes surveillance only of a “person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent.” N.Y Penal Law § 250.45(1) and (2). A legitimate expectation of privacy is a demonstrated “expectation of privacy that society recognizes as reasonable.” People v. Ramirez–Portoreal, 88 N.Y.2d 99, 108, 643 N.Y.S.2d 502, 666 N.E.2d 207 (1996). The validity of an expectation of privacy depends on the circumstances. Id. at 109, 643 N.Y.S.2d 502, 666 N.E.2d 207.
While plaintiffs' expectation of privacy in their apartment behind the closed door is reasonable, see People v. Mercado, 68 N.Y.2d 874, 876, 508 N.Y.S.2d 419, 501 N.E.2d 27 (1986), an expectation of privacy in the hallway is not reasonable because it is accessible to other persons. People v. Funches, 89 N.Y.2d 1005, 1007, 657 N.Y.S.2d 396, 679 N.E.2d 635 (1997); People v. Fabelo, 277 A.D.2d 130, 130–31, 717 N.Y.S.2d 98 (1st Dep't 2000). Plaintiffs admit that the camera recorded what occurred inside their apartment only when its entrance door was open, yet contend that the camera somehow intruded on their intimate activities. Plaintiffs do not deny that it would have done so only when their entrance door was open.
Plaintiffs further claim that defendants installed the camera to humiliate them to the point of vacating their rent stabilized apartment. Penal Law § 250.45(3) also prohibits surveillance without consent in specified rooms for no legitimate purpose. People v. Evans, 27 A.D.3d 905, 906, 810 N.Y.S.2d 590 (3d Dep't 2006). Plaintiffs fail to allege, however, that the camera recorded any room to which the statutory prohibition applies. Therefore plaintiffs fail to show that defendants violated any of Penal Law § 250.45's provisions.
Plaintiffs' allegations that defendants' camera allowed views into their apartment falls short of extreme and outrageous behavior. Even if the camera's location were considered a trespass into plaintiffs' apartment, it would not constitute atrocious, indecent, or utterly despicable conduct meeting the requirements for an intentional emotional distress claim. Howell v. New York Post Co., 81 N.Y.2d at 126, 596 N.Y.S.2d 350, 612 N.E.2d 699. While installation of a camera to view plaintiffs surreptitiously where they legitimately expected privacy may constitute extreme and outrageous conduct, Sawicka v. Catena, 79 A.D.3d 848, 849–50, 912 N.Y.S.2d 666 (2d Dep't 2010), plaintiffs maintain no reasonable expectation of privacy in the hallway where defendants installed the camera, nor where it viewed into plaintiffs' apartment only when plaintiffs themselves opened the door. See Howell v. New York Post Co., 81 N.Y.2d at 126, 596 N.Y.S.2d 350, 612 N.E.2d 699. Insofar as defendants' installation may be considered harassment under the New York Rent Stabilization Code, 9 N.Y.C.R.R. § 2525.5, the determination of whether defendants committed harassment is for the New York State Division of Housing and Community Renewal. 9 N.Y.C.R.R. § 2526.2(c)(2); Sohn v. Calderon, 78 N.Y.2d 755, 765, 579 N.Y.S.2d 940, 587 N.E.2d 807 (1991); Edelstein v. Farber, 27 A.D.3d 202, 811 N.Y.S.2d 358 (1st Dep't 2006); Mago, LLC v. Singh, 47 A.D.3d 772, 773, 851 N.Y.S.2d 593 (2d Dep't 2008). Therefore, regardless of the outcome of a hearing on service, the court grants defendants' motion to dismiss plaintiffs' claim of intentional infliction of emotional distress. C.P.L.R. § 3211(a)(7).
The elements of a prima facie tort are: (1) intentional infliction of harm, (2) causing special damages, (3) without justification or excuse, (4) by otherwise lawful acts. Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142–43, 490 N.Y.S.2d 735, 480 N.E.2d 349 (1985); Curiano v. Suozzi, 63 N.Y.2d 113, 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324 (1984); Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 332, 464 N.Y.S.2d 712, 451 N.E.2d 459 (1983); Posner v. Lewis, 80 A.D.3d 308, 312, 912 N.Y.S.2d 53 (1st Dep't 2010). Plaintiffs must plead a “specific and measurable loss” from the tortious conduct to establish special damages. Freihofer v. Hearst Corp., 65 N.Y.2d at 143, 490 N.Y.S.2d 735, 480 N.E.2d 349.See Curiano v. Suozzi, 63 N.Y.2d at 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324;DeMicco Bros., Inc. v. Consolidated Edison Co. of NY, Inc., 8 A.D.3d 99, 100, 779 N.Y.S.2d 10 (1st Dep't 2004); Vigoda v. DCA Prods. Plus, 293 A.D.2d 265, 266, 741 N.Y.S.2d 20 (1st Dep't 2002); Havell v. Islam, 292 A.D.2d 210, 739 N.Y.S.2d 371 (1st Dep't 2002). Malevolence must be the sole motivation for defendants' injurious actions. Curiano v. Suozzi, 63 N.Y.2d at 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324;Burns Jackson Miller & Spitzer v. Lindner, 59 N.Y.2d at 333, 464 N.Y.S.2d 712, 451 N.E.2d 459;Posner v. Lewis, 80 A.D.3d at 312, 912 N.Y.S.2d 53.
Plaintiffs' allegation in their complaint that defendants placed the camera to force plaintiffs and the other rent regulated...
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