Yokley v. Henry-Clark Associates

• Decision Date: 07 November 1996
• Docket Number: HENRY-CLARK
• Citation: 170 Misc.2d 779,655 N.Y.S.2d 714
• Parties: Weldon YOKLEY, Respondent, v.ASSOCIATES, et al., Appellants.
• Court: New York Supreme Court — Appellate Term

Page 714

655 N.Y.S.2d 714

170 Misc.2d 779

Weldon YOKLEY, Respondent, v. HENRY-CLARK ASSOCIATES, et al., Appellants.

Supreme Court, Appellate Term,

Second Department.

Nov. 7, 1996.

Law Offices of Jeremy Heisler, Brooklyn (Jeremy Heisler, of counsel), and Goldberg & Cohn, New York City (Steven D. Cohn, of counsel), for appellants.

Fischbein Badillo Wagner Itzler, New York City (Kenneth G. Schwarz, Bruce N. Lederman and Louis Ryckmans, of counsel), for respondent.

Before ARONIN, J.P., and CHETTA and PATTERSON, JJ.

MEMORANDUM.

Appeal from the order entered on February 16, 1995 is dismissed without costs.

Judgment unanimously reversed without costs and the complaint dismissed.

Cross-appeal from the trial court's ruling which denied plaintiff's motion for a directed verdict dismissed without costs.

It is undisputed that plaintiff originally resided in the Clark wing of the St. George Hotel in 1976. Due to the condition of the premises, landlord requested plaintiff to move out of the Clark wing and offered him a room in the Studio wing. Plaintiff accepted the offer and moved into room 618 of the Studio wing in February 1979. After plaintiff relocated to this wing, the services to the St. George Hotel began to deteriorate. Finally, in February 1982 the New York City Department of Buildings issued an order directing the tenants to vacate and the landlord to repair the premises. Plaintiff vacated the premises in February but the premises have not been repaired and he has not been restored to possession. In 1985, plaintiff purchased a cooperative apartment located in Brooklyn, New York and at the time of trial, he still resided at this premises.

Plaintiff commenced this action in July 1988 by service of summons and complaint seeking to recover damages for constructive eviction, intentional infliction of emotional distress and breach of warranty of habitability. In addition, plaintiff sought to recover damages relating to his exposure to asbestos as a first cause of action alleged in the complaint but no proof was offered at the trial relating to this claim. The third cause of action alleged that plaintiff had no adequate remedy at law. In conforming the pleadings to the proof the court below found that plaintiff had a claim for conversion against the defendants. After a lengthy trial, the jury found that plaintiff sustained $125,800 in actual damages and awarded him $3,750,000 in punitive damages. However, pursuant to defendants' motion to set aside the verdict, the court below reduced the amount of punitive damages awarded to plaintiff to the sum of $1,000,000.

The second cause of action which states a claim for intentional infliction of emotional distress is an intentional tort governed by a one year statute of limitations (see, CPLR 215; Klishwick v. Popovicki, 186 A.D.2d 173, 587 N.Y.S.2d 955; Hansen v. Petrone, 124 A.D.2d 782, 508 N.Y.S.2d 500). It is undisputed that the instant action was commenced in July 1988 more than six years after plaintiff was ordered to vacate the premises. More than one year elapsed from the time the cause of action accrued and this claim is time-barred.

The fourth cause of action, which alleged a claim based on constructive eviction, is actually one for wrongful eviction and is also governed by a one year statute of limitations (Jones v. City of New York, 161 A.D.2d 518, 555 N.Y.S.2d 788). The court below rejected defendants' contention that the cause of action accrued immediately when plaintiff vacated the premises in February 1982 pursuant to an order to repair and vacate the premises issued by the New York City Department of Buildings, and determined that the...