Steinberg v. Monasch

• Decision Date: 30 March 1982
• Citation: 85 A.D.2d 403,448 N.Y.S.2d 200
• Court: New York Supreme Court — Appellate Division
• Parties: Laura STEINBERG, Plaintiff-Appellant, v. Burton I. MONASCH, Hartley Chazen, Arnold Stream, The Law Firm of Monasch, Chazen, & Stream, Robert Smith, Saul P. Steinberg, Dominic Abatiello, Reliance Group, Inc., Defendants-Respondents, and The City of New York, The New York City Police Department, Captain Lynch and Does 1-10 who are New York City Police Officers, and John Patten, Defendants.

Page 200

448 N.Y.S.2d 200

85 A.D.2d 403

Laura STEINBERG, Plaintiff-Appellant, v. Burton I. MONASCH, Hartley Chazen, Arnold Stream, The Law Firm of Monasch, Chazen, & Stream, Robert Smith Saul P. Steinberg, Dominic Abatiello Reliance Group, Inc. Defendants-Respondents and The City of New York, The New York City Police Department, Captain Lynch and Does 1-10 who are New York City Police Officers, and John Patten, Defendants.

Supreme Court, Appellate Division, First Department.

March 30, 1982.

Thomas A. Andrews, New York City, of counsel (Filip Tiffenberg, New York City, with him on the brief; Saxe, Bacon & Bolan, P. C., New York City, attys.), for plaintiff-appellant.

Robert J. Kheel, New York City, of counsel (Jonathan P. Wolfert, New York City, with him on the brief; Willkie Farr & Gallagher, New York City, attys.), for defendant-respondent Reliance Group.

Burton I. Monasch, New York City, of counsel (Monasch Chazen & Stream, New York City, attys.), for defendants-respondents other than Reliance.

Before MURPHY, P. J., and SANDLER, LUPIANO, BLOOM and MILONAS, JJ.

LUPIANO, Justice.

The plaintiff's first cause of action clearly states a cause of action. In it plaintiff wife alleges that she resided in the marital home with her eighteen month old son; that marital difficulties between her and her husband defendant Saul P. Steinberg resulted in pending matrimonial litigation which could entail a court determination as to who would be awarded exclusive possession of the marital residence during the pendency of the litigation; that on March 28, 1980, in the absence of any court order awarding exclusive possession of the residence to either plaintiff or defendant Saul Steinberg, the defendants-respondents, fearful that the court would direct that plaintiff and her child continue in possession of the marital residence, conspired to wrongfully eject plaintiff from said residence; that to accomplish this end, they schemed to have plaintiff ejected by the police under the guise of arrest on a "pretextual" violation of the Penal Law, or in the event the police refused to act, to themselves physically remove plaintiff from the premises; that defendants Monasch, Smith and Abatiello pursuant to the conspiracy entered the marital residence and demanded that plaintiff vacate; that plaintiff sought safety in her bedroom which she locked; that said defendants broke through, compelling plaintiff to lock herself in the adjacent bathroom; that the police summoned to the apartment refused to aid said defendants in their endeavor to forcibly remove plaintiff; that said defendants threatened plaintiff that if she did not come out they would break through and forcibly remove her, which threats compelled plaintiff to open the bathroom door, thereby subjecting herself to the said defendants' power in effecting her removal from the marital residence. There is not present in this record a lease or licensing agreement between the owner spouse (Saul Steinberg) and the non-owner spouse (plaintiff Laura Steinberg) whereby the owner spouse could resort to summary proceedings to evict his wife (See, Rasch: New York Landlord & Tenant § 1158):

"If, however, she started her possession as the wife of the 'landlord', and she continues in possession ... she is in possession not by virtue of any license, but solely on the basis of the existence of the marital relationship" (Ibid.).

It was aptly noted in Wright v. Wright, 188 Misc. 268, 270, 67 N.Y.S.2d 63 that

"(w)hen a husband and wife have been living together upon the wife's property, and the wife becomes entitled to the sole and exclusive possession thereof, the husband cannot be summarily evicted, as an intruder or squatter, by a summary proceeding .... The usual form of action in which the right to possession of real property is determined, and possession thereof is obtained, is an action in ejectment .... This is the petitioner's proper remedy in the instant case" (See, Rasch, supra § 1141; 15 N.Y.Jur., Domestic Relations § 296; cf. McKaig v. McKaig, 154 Misc. 257, 276 N.Y.S. 829).

There is no court order or judgment directing that defendant Saul Steinberg is entitled to the sole and exclusive possession of the marital abode. ^* The marital relationship has not yet been severed by court decree. Defendant Saul Steinberg, under these circumstances, and the allegations of the complaint (first cause of action), has resorted to self-help rather than recovery of possession by legal process. He has allegedly effected the ejectment of his spouse by forcible entry (See, Prosser: Law of Torts § 23 ). Real Property Actions and Proceedings Law (RPAPL) § 853 entitled "Action for forcible or unlawful entry or detainer; treble damages" provides:

"If a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he has been put out, is held and kept out by force or by putting him in fear of personal violence or by unlawful means, he is entitled to recover treble damages in an action therefor against the wrong-doer."

It is clear that plaintiff's first cause of action sounds in forcible entry (a tort) and is not a claim for mere trespass. Accordingly, Special Term erred in dismissing the first cause of action for failure to state a cause of action on the basis that it alleged a simple trespass, and that defendant Saul Steinberg, the spouse owner, could not trespass upon his own property.

Plaintiff's second cause of action seeks punitive damages in consequence of the acts underlying her first cause of action. In essence, it appears that plaintiff is here seeking the treble damages provided for by RPAPL § 853. Similarly, the fourth, sixth and seventh causes of action seek punitive damages. Special Term properly dismissed all four causes on the basis that there is no independent cause of action for punitive damages (Fiur Co. v. Ataka & Co., 71 A.D.2d 370, 375-376, 422 N.Y.S.2d 419 ).

"There can be no separate cause of action for punitive damages. Such a claim for damages constitutes merely an element of the single total claim for damages on the underlying causes of action (APS Food Systems v. Ward Foods, 70 A.D.2d 483 Goldberg v. New York Times, 66 A.D.2d 718 M.S.R. Assoc. v. Consolidated Mut. Ins. Co., 58 A.D.2d 858 Greenberg Co. v. Edgemont Condominiums, 57 A.D.2d 861 Ferrucci v. State of New York, 42 A.D.2d 359, 362 aff'd 34 N.Y.2d 881 ). The complaint is deemed to demand punitive damages which are recoverable only if the proof establishes there was 'such gross, wanton, or willful fraud or other morally culpable conduct to a degree sufficient to justify an award of punitive damages.' (Borkowski v. Borkowski, 39 N.Y.2d 982, 983 (Bunker v. Bunker, 73 A.D.2d 530, 422 N.Y.S.2d 403 ).

Leave is granted plaintiff to replead with respect to these dismissed causes of action--the second, fourth, sixth and seventh (Cf. Goldberg v. New York Times, 66 A.D.2d 718, 411 N.Y.S.2d 294 ).

Special Term dismissed the complaint for failure to state a cause of action against defendant Reliance Group, Inc. on the ground that although said corporation is the employer of defendant Abatiello, there is no allegation that Abatiello was acting within the scope of his employment, citing Riviello v. Waldron, 47 N.Y.2d 297, 418 N.Y.S.2d 300, 391 N.E.2d 1278 (1979). It is duly noted that Riviello was concerned not with the statement of a cause of action, but with proof at trial going to the merits of the cause of action. In that case it was observed:

Applying the pertinent legal precepts to this factual framework, we first note what is hornbook law: the doctrine of respondeat superior renders a master vicariously liable for a tort committed by his servant while acting within the scope of his employment .... The definition of 'scope of employment', however, has not been an unchanging one. Originally defined narrowly ..., social policy has wrought a measure of relaxation of the traditional confines of the doctrine .... So, no longer is an employer necessarily excused merely because his employees, acting in furtherance of his interests, exhibit human failings...