| Associates First Capital v Crabill |
| 2008 NY Slip Op 04259 [51 AD3d 1186] |
| May 8, 2008 |
| Appellate Division, Third Department |
| Associates First Capital, as Successor to Associates FinancialServices Company, Inc. and Associates Consumer Discount Company, Respondent, vGeorgianne Crabill, Also Known as Georgianne R. Crabill, et al., Appellants, et al.,Defendants. |
—[*1] Reed Smith, L.L.P., New York City (David J. DeJesus pro hac vice of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Doyle, J.), entered March 30, 2007in Albany County, which granted plaintiff's motion for summary judgment dismissing thecounterclaim of defendants Georgianne Crabill and William Crabill.
In this dispute arising from subprime mortgage refinancing, the issues before us includewhether Supreme Court erred in refusing to consider papers submitted late by defendantsWilliam Crabill and Georgianne Crabill (hereinafter collectively referred to as defendants) inopposition to plaintiff's motion for summary judgment dismissing defendants' counterclaims andwhether there is a triable issue as to defendants' cause of action for the intentional infliction ofemotional distress. Briefly stated, in May 2003, defendants refinanced with CitifinancialMortgage Company a loan that they had obtained four years earlier from a company ostensiblyintertwined with Citifinancial, Associates Consumer Discount Company. The loans were [*2]secured by mortgages on their home in Albany County. After thesecond loan had closed, a dispute arose regarding the proper payoff because a credit lifeinsurance policy taken out as part of the first mortgage (and paid on a monthly basis) had beenomitted from Citifinancial's calculations. On the advice of counsel, defendants refused to pay thecredit insurance account because a class action lawsuit was pending regarding plaintiff's practicesas to such accounts nationwide.
In February 2006, defendants received a credit of approximately $2,100 as part of the classaction settlement and, in April 2006, plaintiff commenced this foreclosure action asserting that iswas still owed about $10,000 on the insurance account. Defendants alleged numerouscounterclaims including, as currently relevant, the intentional infliction of emotional distress.Plaintiff, which had reportedly discontinued its foreclosure action, moved for summary judgmentdismissing defendants' counterclaims. Defendants' papers in opposition were not served incompliance with CPLR 2214 (b). Supreme Court thus treated plaintiff's motion as unopposedand, upon such ground, granted summary judgment dismissing all counterclaims. Defendantsappeal.
If a motion is made at least 16 days before the return date and includes a proper demand, thenanswering papers must be mailed at least seven days before the return date (see CPLR2214 [b]; see generally Siegel, NY Prac § 247 [4th ed]). "While a court can in itsdiscretion accept late papers, CPLR 2214 and 2004 mandate that the delinquent party offer avalid excuse for the delay" (Thermo Spas v Red Ball Spas & Baths, 199 AD2d 605, 606[1993] [citations omitted]). Additional factors relevant when essentially extending the return dayby accepting late papers include, among others, the length of the delay and any prejudice (see Matter of Burkich, 12 AD3d755, 756 [2004]; Saha v Record, 307 AD2d 550, 551 [2003]).
Here, plaintiff's motion was dated December 27, 2006, with an original return date of January16, 2007, and included a demand for opposition papers seven days before the return date. Themotion was adjourned upon consent to January 30, 2007 and then February 6, 2007. Defendantshand-delivered their responding papers to Supreme Court on February 5, 2007 together with acover letter consenting to a 30-day extension for plaintiff to reply. Plaintiff wrote a letter urgingSupreme Court to reject the untimely papers. Nonetheless, ostensibly availing itself of theproffered extension, plaintiff filed reply papers with the court on February 21, 2007. In theinterim, on February 9, 2007, defendants' counsel submitted an extensive affirmation explainingin detail the personal problems and law office failures that resulted in the delay in opposing themotion. The delay was minimal (less than one week), there was no showing of prejudice toplaintiff (which availed itself of the additional time and submitted a considerable reply), and adetailed explanation was provided for the delay. Under such circumstances and in light of thepreference for resolving cases on their merits (see e.g. Aabel v Town of Poughkeepsie,301 AD2d 739, 739 [2003]), as well as the fact that lesser sanctions would have better addressedthe short delay, we find that Supreme Court erred in considering plaintiff's motion unopposedand granting the motion upon such ground.
Nonetheless, review of the papers submitted by defendants and the issues as narrowed bytheir argument reveals that summary judgment was appropriate. Defendants contend that thereare factual issues as to their cause of action for the intentional infliction of emotional distress.Such a cause of action will be "found only where the conduct has been so outrageous incharacter, and so extreme in degree, as to go beyond all possible bounds of decency, and to beregarded as atrocious, and utterly intolerable in a civilized community" (Howell v New York[*3]Post Co., 81 NY2d 115, 122 [1993] [internal quotationmarks and citations omitted]). While a dispute over indebtedness and concomitant collectionefforts may fall to such a level of loathsome conduct as to justify a cause of action for theintentional infliction of emotional distress (see Long v Beneficial Fin. Co. of N.Y., 39AD2d 11, 12-15 [1972]), conduct that causes inconvenience and embarrassment or places aperson in an uncomfortable situation for a protracted time is not sufficient (see Ford MotorCredit Co. v Hickey Ford Sales, 94 AD2d 902, 903 [1983], affd 62 NY2d 291[1984]; see also Gallagher v Consolidated Edison Co. of N.Y., 162 AD2d 657, 658[1990], appeal dismissed 76 NY2d 935 [1990]; Crandall v Bernard, Overton &Russell, 133 AD2d 878, 880 [1987], lv dismissed 70 NY2d 940 [1988]). Defendants'affidavit details, among other things, their frustrations in trying to resolve the disputed amount,threats of foreclosures they received, phone calls placed to the workplace of one of thedefendants that were embarrassing and upsetting, misrepresentations as to the amount owed, andstress resulting from the ongoing dispute. While such conduct was unfortunate and undoubtedlycaused embarrassment and stress, it did not meet the " 'rigorous . . . and difficult tosatisfy' " requirements for a viable cause of action for intentional infliction of emotional distress(Howell v New York Post Co., 81 NY2d at 122, quoting Prosser and Keeton, Torts§ 12, at 60-61 [5th ed]).
The remaining arguments have been considered and found unavailing.
Peters, J.P., Spain, Rose and Kavanagh, JJ., concur. Ordered that the order is affirmed, withcosts.