Taggart v. Costabile

• Decision Date: 24 June 2015
• Docket Number: 2012-09132
• Citation: 14 N.Y.S.3d 388,131 A.D.3d 243,2015 N.Y. Slip Op. 05464
• Parties: John TAGGART, et al., respondents, v. Ralph COSTABILE, et al., appellants.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 243

14 N.Y.S.3d 388

2015 N.Y. Slip Op. 05464

John TAGGART, et al., respondents

v.Ralph COSTABILE, et al., appellants.

2012-09132

Supreme Court, Appellate Division, Second Department, New York.

June 24, 2015.

Ellen O'Hara Woods, Tappan, N.Y., for appellants.

Howard Z. Myerowitz, New City, N.Y., for respondents.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and ROBERT J. MILLER, JJ.

Opinion

MILLER, J.

Among the issues presented for our review on this appeal is whether the plaintiffs have stated a cause of action alleging negligent infliction of emotional distress. In order to evaluate this issue it is necessary to consider whether an allegation of extreme and outrageous conduct is an essential element of that cause of action. Although decisions of this Court have, on occasion, included language indicating that it is, we now clarify that extreme and outrageous conduct is not an essential element of a cause of action alleging negligent infliction of emotional distress.

I. Background

The plaintiffs, a married couple, owned certain real property located in Haverstraw, Rockland County. The defendants owned the property next door to the plaintiffs' property. The defendants leased their property to tenants, and the plaintiffs resided on their property.

The plaintiffs commenced this action against the defendants. The complaint set forth four causes of action against the defendants, to recover damages for nuisance, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium. Notably, the tenants were not named as defendants, and the complaint did not allege any causes of action against them.

The plaintiffs alleged in the complaint that the defendants' tenants “continually breach[ed] the peace and ... engag[ed] in illegal activity.” Specifically, they alleged that the defendants' tenants repeatedly hosted large parties at all hours of the night, and that these gatherings caused impediments to the flow of traffic and entailed loud music, public alcohol consumption, and the open use and sale of illegal drugs.

The plaintiffs also alleged that the defendants failed to take any action to remedy the problems created by their tenants despite numerous complaints from the plaintiffs and other neighbors, and that police intervention was routinely needed to restore peace to the neighborhood. They alleged that the defendants “intentionally refused to [defuse] the situation” because the defendants sought to intimidate the plaintiffs and drive them from their home. They alleged that the defendants “wanted the [plaintiffs'] land” so that they could “build a condominium complex.”

The plaintiffs further alleged in the complaint that on October 3, 2009, they called the police to “break up a loud and disruptive party hosted by the [defendants'] tenants.” On October 4, 2009, two armed men wearing ski masks entered the plaintiffs' residence and physically dragged the plaintiff-husband from his bed, telling him “they had a problem with [him] calling the police.” The two men threatened him and warned him not to call the police about the defendants' tenants anymore.

The two intruders allegedly forced the plaintiff-husband from room to room, collecting all of the telephones in the house. The plaintiff-husband was eventually able to break free, grab his rifle, and shoot both of the men—one was shot in the arm, the other was shot in the buttocks. The plaintiff-husband also accidentally shot his own dog in the head. Responding police located the two intruders hiding in the lake behind the defendants' property. The complaint alleged that the two men “upon information and belief are related to the tenants and are constant visitors of the tenants.”

After discovery, the defendants moved for summary judgment dismissing the complaint. They argued that the plaintiffs' allegations did not support a determination that they owed any duty to the plaintiffs. The defendants also asserted that their alleged conduct did not rise to the level of extreme and outrageous conduct. Finally, they argued that they could not be held responsible for the conduct of their tenants or the two men who intruded into the plaintiffs' home.

The Supreme Court denied the defendants' motion, concluding that “ factual issues ... require a trial for resolution.” The defendants appeal, and we reverse.

II. Discussion

On appeal, the defendants contend that the Supreme Court should have granted their motion for summary judgment dismissing the complaint. Accordingly, each of the four causes of action asserted in the complaint must be independently analyzed.

A. Private Nuisance

The first cause of action alleged in the complaint sought to recover damages for a private nuisance.

The elements of a private nuisance cause of action are: “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act” (Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 570, 394 N.Y.S.2d 169, 362 N.E.2d 968, citing Restatement [Second] of Torts § 822 [hereinafter the Second Restatement]; see Massaro v. Jaina Network Sys., Inc., 106 A.D.3d 701, 703, 964 N.Y.S.2d 588 ).

Here, the plaintiffs alleged that the defendants' tenants repeatedly hosted large parties at all hours of the night which impeded the flow of traffic and entailed loud music, public alcohol consumption, and the open use and sale of illegal drugs. This type of conduct has long been recognized as having the potential to interfere with the use and enjoyment of another's property: “[i]t is a nuisance for one to permit a crowd to habitually gather on his [or her] land and by boisterous singing, obscene language and other disorderly conduct to seriously annoy his next-door neighbor” (Hogle v. Franklin Mfg. Co., 199 N.Y. 388, 396, 92 N.E. 794 ). “It is immaterial whether the acts [were] committed by [the landowner's employees] or by strangers, so long as they are committed on [the landowner's] land, constantly and with his [or her] knowledge” (id. ).

However, the duty to abate a private nuisance existing on real property arises from the power to possess the property and control the activities that occur on it. Accordingly, a landowner who has relinquished possession of his or her property will not be liable for a private nuisance that arises on the property if the landowner neither created the nuisance nor had notice of it at the time that possession of the property was transferred (see generally Wilks v. New York Tel. Co., 243 N.Y. 351, 360, 153 N.E. 444 ; Timlin v. Standard Oil Co., 126 N.Y. 514, 525–526, 27 N.E. 786 ; 225 E. 64th St., LLC v. Janet H. Prystowsky, M.D. P.C., 96 A.D.3d 536, 537, 947 N.Y.S.2d 27 ; Bernard v. 345 E. 73rd Owners Corp., 181 A.D.2d 543, 543, 581 N.Y.S.2d 46 ; New York Tel. Co. v. Mobil Oil Corp., 99 A.D.2d 185, 188, 473 N.Y.S.2d 172 ; Penn Cent. Transp. Co. v. Singer Warehouse & Trucking Corp., 86 A.D.2d 826, 828, 447 N.Y.S.2d 265 ; accord Second Restatement § 837 [1]; cf. Siino v. Reices, 216 A.D.2d 552, 553, 628 N.Y.S.2d 757 ; Johnson v. Slocum Realty Corp., 191 A.D.2d 613, 613, 595 N.Y.S.2d 244 ). In the absence of any such knowledge or consent to the objectionable activity which may be attributable to the landowner at the time the lease is executed, the common-law duty to abate a nuisance that exists during the course of a tenancy lies with the tenant, in his or her capacity as the one in possession of the property (see Second Restatement § 838).

Here, the plaintiffs alleged in the complaint that the defendants leased their property to the tenants, and that the tenants were in possession of the premises during the period that the alleged nuisance arose on the property. They did not allege that the defendants created the alleged nuisance, or that they knew or had reason to know that the allegedly objectionable activities would take place at the time that the property was leased to the tenants. Rather, the plaintiffs merely alleged that the defendants “refused to take the requisite steps to restore peace and tranquility to the neighborhood” after the alleged nuisance had begun. Accordingly, the complaint failed to allege a private nuisance for which the defendants could be held legally responsible (see Bernard v. 345 E. 73rd Owners Corp., 181 A.D.2d at 543, 581 N.Y.S.2d 46 ).

Inasmuch as the complaint failed to state a cause of action alleging a private nuisance, the defendants demonstrated, prima facie, their entitlement to judgment as a matter of law on that cause of action (see generally Light v. Light, 64 A.D.3d 633, 634, 883 N.Y.S.2d 553 ; Fischer v. RWSP Realty, LLC, 53 A.D.3d 594, 595, 862 N.Y.S.2d 541 ; see also Weiss v. Michael Taylor, Ltd., 95 A.D.3d 1305, 1306, 944 N.Y.S.2d 903 ; Ort v. Ort, 78 A.D.3d 1138, 1138, 911 N.Y.S.2d 666 ). Since the plaintiffs failed to rebut this prima facie showing, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages for private nuisance.

B. Intentional Infliction of Emotional Distress

The second cause of action asserted in the complaint sought to recover damages for intentional infliction of emotional distress.

“The tort of intentional infliction of emotional distress is a departure from the common law” (McIntyre v. Manhattan Ford, Lincoln–Mercury, 256 A.D.2d 269, 270, 682 N.Y.S.2d 167 ). “The Restatement of Torts, first adopted in 1934, generally insulated an actor from liability for causing solely emotional distress” (Howell v. New York Post Co., 81 N.Y.2d 115, 120, 596 N.Y.S.2d 350, 612 N.E.2d 699 ; see Restatement of Torts § 46 [a] ).

This Court first recognized a cause of action alleging intentional infliction of emotional distress in 1961, concluding that “there may be recovery for the intentional infliction of mental distress without proof of the breach of...