Richard L. v. Armon

• Decision Date: 17 January 1989
• Citation: 536 N.Y.S.2d 1014,144 A.D.2d 1
• Parties: RICHARD L. (Anonymous), etc., Appellant, v. Richard ARMON, Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 1014

536 N.Y.S.2d 1014

144 A.D.2d 1

RICHARD L. (Anonymous), etc., Appellant, v. Richard ARMON, Respondent, et al., Defendant.

Supreme Court, Appellate Division,

Second Department.

Jan. 17, 1989.

Melvin N. Borowka, Mineola, for appellant.

Capetola & Doddato, Williston, Park (Patricia A. Harrington, of counsel), for respondent.

Before BRACKEN, J.P., and KUNZEMAN, EIBER and KOOPER, JJ.

BRACKEN, Justice Presiding.

On October 15, 1986, the defendant Richard Armon appeared in the County Court, Nassau County, and pleaded guilty to the crime of sexual abuse in the second degree (Penal Law § 130.60), a class A misdemeanor. He was subsequently sentenced to probation for a term of three years. The plaintiff, the father and natural guardian of an infant who was the victim of the crime, now claims, on her behalf, that as a result of the admissions made during his plea allocution Armon should be precluded from contesting his civil liability based upon the tort of intentional infliction of emotional distress. The sole question presented then is whether application of the doctrine of issue preclusion, also known as collateral estoppel, warrants the granting of partial summary judgment against Armon upon this theory of liability. We agree with the Justice who presided in the Supreme Court, and we hold that it does not.

"The elements necessary in all cases for issue preclusion are well known. It is required that an issue in the present proceeding be identical to that necessarily decided in a prior proceeding" (Allied Chemical v. Niagara Mohawk Power Corp., 72 N.Y.2d 271, 276, 532 N.Y.S.2d 230, 528 N.E.2d 153, citing Schwartz v. Public Administrator, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 246 N.E.2d 725; Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500-502, 478 N.Y.S.2d 823, 467 N.E.2d 487). The doctrine of issue preclusion provides that "as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action" (Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328, citing Matter of Shea, 309 N.Y. 605, 616, 132 N.E.2d 864). "What is controlling is the identity of the issue which has necessarily been decided in the prior action or proceeding" (Ryan v. New York Tel Co., supra, 62 N.Y.2d at 500, 478 N.Y.S.2d 823, 467 N.E.2d 487; see also, Capital Tel. Co. v. Pattersonville Tel. Co., 56 N.Y.2d 11, 17-18, 451 N.Y.S.2d 11, 436 N.E.2d 461). Thus, the defendant Richard Armon in the present civil action will be precluded from litigating only those issues which are identical to ones necessarily resolved by virtue of the prior judgment convicting him, upon his plea of guilty, of sexual abuse in the second degree (see, Merchants Mut. Ins. Co. v. Arzillo, 98 A.D.2d 495, 504, 472 N.Y.S.2d 97; Brennan v. Mead, 81 A.D.2d 821, 438 N.Y.S.2d 821, affd. 54 N.Y.2d 811, 443 N.Y.S.2d 652, 427 N.E.2d 949).

The only issues of fact which were necessarily decided by virtue of the prior judgment of conviction are (1) that the defendant Richard Armon touched the "sexual or other intimate parts for the purpose of gratifying sexual desire of either party" (Penal Law §§ 130.60, 130.00) and (2) that the infant was, at that time, less than 14 years old (Penal Law § 130.60). The issues of fact which must be decided in the present case are, (1) whether the defendant Armon engaged in conduct which went "beyond all possible bounds of decency" (Fischer v. Maloney, 43 N.Y.2d 553, 557, 402 N.Y.S.2d 991, 373 N.E.2d 1215, quoting from Restatement of Torts § 46, comment d; see also, Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86), (2) whether he intended to cause distress or knew that his conduct would result in emotional distress (Restatement of Torts § 46, comment i), (3) whether the infant, in fact, suffered severe emotional distress (Restatement of Torts § 46, comment j) and (4) whether Armon's conduct, in fact, caused the distress. These are the four elements of the tort of intentional infliction of emotional distress as defined in the Restatement (Second) of Torts § 46(1), and as defined in the substantive law of most jurisdictions, including New York (see, Annotation,Torts--Intentional Mental Distress, 38 A.L.R.4th 998). It is clear that these elements are completely different from the elements of sexual abuse in the second degree.

To begin with the most obvious factor, it is well settled that one of the elements of the tort of intentional infliction of emotional distress is that the victim be shown to have suffered severe psychological damage (see, Nader v. General Motors Corp., 25 N.Y.2d 560, 569, 307 N.Y.S.2d 647, 255 N.E.2d 765; Kasachkoff v. City of New York, 107 A.D.2d 130, 137, 485 N.Y.S.2d 992, affd. 68 N.Y.2d 654, 505 N.Y.S.2d 67, 496 N.E.2d 226). This element must be established to make out liability and does not go merely to damages (see, Restatement of Torts § 46, comment j; see also, Moniodis v. Cook, 64 Md.App. 1, 494 A.2d 212, 219-220, cert. denied 304 Md. 631, 500 A.2d 649; Sale v. Allstate Ins. Co., 126 Ill.App.3d 905, 81 Ill.Dec. 901, 913, 467 N.E.2d 1023, 1035; Bridges v. Winn-Dixie Atlanta, 176 Ga.App. 227, 335 S.E.2d 445, 448; Ludwick v. This Minute of Carolina, 283 S.C. 149, 321 S.E.2d 618, 621; Rooney v. National Supermarkets, 668 S.W.2d 649, 650 Anthan v. Professional Air Traffic Controllers Org., 672 F.2d 706, 711 Moolenaar v. Atlas Motor Inns, 616 F.2d 87, 90 see also, 7AWarren, New York Negligence--Damages, ch. 10, § 3.04 Prosser and Keeton, Torts § 12, at 60 ). Most courts, following the rule announced in the Restatement (Second) of Torts § 46, comment j, hold that an objective standard applies in determining whether the emotional distress suffered by the victim is sufficiently severe to warrant imposition of liability and state that, in order to give rise to liability, the distress inflicted must be "so severe that no reasonable man could be expected to endure it" (Restatement of Torts § 46, comment j; see, e.g., Girard v. Ball, 125 Cal.App.3d 772, 178 Cal.Rptr. 406; see also, Minzer, Damages in Tort Actions, § 6.12at 6-83--6-93). "over the severity of plaintiff's emotional distress are generally resolved by the jury" (7AWarren, New York Negligence, Damages, ch 10, § 3.04at 490).

The evidence in the present record as to the criminal conviction which primarily consists of a transcript of the defendant Armon's plea allocution, does not reveal that the infant suffered severe psychological injuries--or, for that matter, any injury, psychological or otherwise--as the result of his sexual contact with her. This is not surprising, since proof of such injury is totally unnecessary in order to sustain a conviction of sexual abuse in the second degree. There is no sound basis, as a matter of law or as a matter of equity, to preclude the defendant Richard Armon from litigating this issue.

Further, the record is similarly devoid of evidence that Richard Armon, who admitted to having touched the intimate parts of the infant in order to gratify his own sexual desire, intended to cause distress. As noted above, a second element of the tort of intentional infliction of emotional distress is that the defendant be proved to have intended to cause emotional distress, or to have acted with conscious disregard of a substantial risk that such distress would result from his conduct (see, Restatement of Torts § 46, comment i; Nader v. General Motors Corp., 25 N.Y.2d 560, 569, 307 N.Y.S.2d 647, 255 N.E.2d 765, supra; Adams Importers v. Dana, 121 A.D.2d 279, 281, 503 N.Y.S.2d 53; see also, Hearon v. City of Chicago, 157 Ill.App.3d 633, 110 Ill.Dec. 161, 164, 510 N.E.2d 1192, 1195; Tommy's Elbow Room v. Kavorkian, 727 P.2d 1038, 1044 Pierce v. Penman, 357 Pa.Super. 225, 515 A.2d 948, 951, n. 2, lv. denied 515 Pa. 608, 529 A.2d 1082; Singer v. Wadman, 595 F.Supp. 188, 298, affd. 745 F.2d 606, cert. denied 470 U.S. 1028, 105 S.Ct. 1396, 84 L.Ed.2d 785; Plocar v. Dunkin' Donuts of Am., 103 Ill.App.3d 740, 59 Ill.Dec. 418, 422-423, 431 N.E.2d 1175, 1179-1180; Vicnire v. Ford Motor Credit Co., 401 A.2d 148 Vance v. Vance, 286 Md. 490, 408 A.2d 728, 736; Gellert v. Eastern Airlines, 370 So.2d 802, 808, cert. denied 381 So.2d 766 Briggs v. Rosenthal, 73 N.C.App. 672, 327 S.E.2d 308, 312, cert. denied 314 N.C. 114, 332 S.E.2d 479). "Intent is not established...