| Dankner v Steefel |
| 2008 NY Slip Op 00642 [47 AD3d 867] |
| January 29, 2008 |
| Appellate Division, Second Department |
| Diane Ellen Dankner, Respondent, v John Edwin Steefel,Appellant. |
—[*1] King & Counsel, PLLC, Mamaroneck, N.Y. (Stephen Francis King of counsel), forrespondent.
In an action, inter alia, for a divorce and ancillary relief, the defendant husband appeals, aslimited by his brief, from so much of a judgment of the Supreme Court, Westchester County(Donovan, J.), dated August 16, 2006, as, upon an order of the same court dated July 12, 2006,made after an inquest, awarding the plaintiff wife compensatory damages, inclusive of anattorney's fee, in the principal aggregate sum of $125,000 on her third cause of action formalicious prosecution, her fourth cause of action for abuse of process, her fifth cause of actionfor intentional infliction of emotional distress, and her sixth cause of action for reckless inflictionof emotional distress, and punitive damages in the principal aggregate sum of $75,000 on thosecauses of action, is in favor of the plaintiff wife and against him in those principal sums.
Ordered that the judgment is modified, on the law, the facts, and in the exercise of discretion,(1) by deleting the provision thereof awarding the plaintiff wife compensatory damages, inclusiveof an attorney's fee, in the principal aggregate sum of $125,000 on the third, fourth, fifth, andsixth causes of action and substituting therefor a provision awarding the plaintiff wife anattorney's fee in the sum of $9,000 and dismissing the fifth and sixth causes of action, and (2) bydeleting the provision thereof awarding the plaintiff wife punitive damages in the principalaggregate sum of $75,000 on the third, fourth, fifth, and sixth causes of action; as so modified,the judgment is affirmed insofar as appealed from, without costs or disbursements.
The husband contends that causes of action alleging infliction of emotional distress may notbe asserted between spouses in a matrimonial action (see Weicker v Weicker, 22 NY2d8, 11 [1968]; see also Xiao Yang Chen vFischer, 6 NY3d 94 [2005]; Reich v Reich, 239 AD2d 246 [1997]). Thehusband, [*2]however, abandoned this contention by failing toraise it in his earlier appeal from an order of contempt dated May 18, 2006 (see Dankner v Steefel, 41 AD3d526 [2007]; Nassau Point Prop.Owners Assn., Inc. v Tirado, 29 AD3d 754, 757 [2006]). In that order, the SupremeCourt held the husband in contempt for willfully disobeying certain provisions of the parties' July2005 so-ordered stipulation of settlement and granted those branches of the wife's motion whichwere for a default judgment on the second, third, fourth, fifth, sixth, and seventh causes of actionsounding in tort. In his appeal from the order of contempt, the husband failed to make theargument he now advances. This Court modified the Supreme Court's order of contempt but didnot disturb the Supreme Court's granting of a default judgment to the wife.
In any event, at the damages inquest that was later conducted, the wife failed to meet herburden of proving that she sustained compensable damages attributable to the fifth cause ofaction for intentional infliction of emotional distress and the sixth cause of action for recklessinfliction of emotional distress (see Klinge v Ithaca Coll., 235 AD2d 724, 727 [1997];Murphy v Murphy, 109 AD2d 965, 966 [1985]), particularly given the absence of anyexpert testimony in support of her emotional distress claims (see Graber v Bachman, 27 AD3d 986, 987 [2006]; Tatta v State of New York, 20 AD3d825, 826-827 [2005]; Angel v Levittown Union Free School Dist. No. 5, 171 AD2d770, 773 [1991]).
Likewise, the wife was not entitled to an award of punitive damages as such an award is"parasitic" to the substantive causes of action (Rocanova v Equitable Life Assur. Socy. ofU.S., 83 NY2d 603, 616 [1994]), and nevertheless was unwarranted in this instance (see Randi A. J. v Long Is. Surgi-Ctr.,46 AD3d 74 [2007]).
With respect to the third and fourth causes of action alleging malicious prosecution andabuse of process, the husband does not dispute on appeal the award of an attorney's fee to thewife, but only the amount of such a fee. The Supreme Court did not make clear what portion ofthe invoice of the wife's attorney, included within the $125,000 compensatory award, wasattributable to an attorney's fee associated with the husband's alleged malicious prosecution andabuse of process. Our discretionary authority to award an attorney's fee is as broad as that of thetrial court (see Reid v Reid, 166 AD2d 811, 813 [1990]), and in the exercise of thatdiscretion and our power of factual review, the judgment is modified to award the wife the sumof $9,000 for such a fee. Crane, J.P., Miller, Dillon and Balkin, JJ., concur.