| Doin v Dame |
| 2011 NY Slip Op 01562 [82 AD3d 1338] |
| March 3, 2011 |
| Appellate Division, Third Department |
| Richard Doin et al., Respondents-Appellants, v J. David Dame,Individually and as President of Champlain Bluffs Development Corporation,Appellant-Respondent. |
—[*1] Stephen A. Johnston, Plattsburgh, for respondents-appellants.
Spain, J. Cross appeals from an order of the Supreme Court (McGill, J.), entered December18, 2009 in Clinton County, which denied defendant's motion for summary judgment dismissingthe complaint and plaintiffs' motion for partial summary judgment.
The parties to this appeal were parties to a prior appeal before our Court involving a series ofcontentious disputes regarding a development along the shore of Lake Champlain in the Town ofPlattsburgh, Clinton County (Doin vChamplain Bluffs Dev. Corp., 68 AD3d 1605 [2009], lv dismissed 14 NY3d832 [2010]). Plaintiffs are among a number of townhouse residents in the development whofound themselves in conflict with defendant who, with his wholly-owned corporation, ChamplainBluffs Development Corporation, owns all remaining portions of the development, includingproperty between the lake and the townhouse owners' lots. Frustrated by the townhouse owners'objections to his plans to develop his property, defendant began in 2004 to assert control overand develop the beach area, including constructing a fence to block access to the beach, strippingall the grass from the beach area, constructing a [*2]20-foot highboat rack directly in front of plaintiffs' home, and placing small boats belonging to plaintiffs andother townhouse owners high up on the rack, making them unreachable without the aid of heavyequipment (id. at 1608). In October 2005, plaintiffs and other residents of thedevelopment commenced an action against defendant and Champlain Bluffs seeking adetermination of the parties' property rights pursuant to RPAPL article 15 and alleging thatdefendant's actions constituted a private nuisance and trespass to personal property.
While that action and other actions between defendant and residents of the development werepending, in 2006 plaintiffs commenced this action alleging intentional infliction of emotionaldistress by defendant, essentially based on the same conduct that gave rise to their privatenuisance and trespass claims. All the actions between defendant and the townhouse owners,except for the instant action, were consolidated for trial in 2007. Thereafter, Supreme Court heldin that consolidated action, among other things, that defendant had committed trespass to chattelsby interfering with the boats of plaintiffs and the other townhouse owners and, by virtue of theconstruction of the fence and boat rack, that he had created a private nuisance. The court awardedboth compensatory and punitive damages accordingly. On appeal, we modified certain aspects ofthe damage award but not with respect to the awards made to plaintiffs (id. at 1614).
Following Supreme Court's judgment in the consolidated action, defendant moved to amendhis answer in this action to include the affirmative defense of res judicata and for summaryjudgment dismissing the complaint. Plaintiffs cross-moved for summary judgment on the issue ofliability, contending, essentially, that the actions of defendant that were proven in the previousaction established, as a matter of law, that defendant's actions were extreme and outrageous andintended to cause severe emotional distress. Supreme Court denied both motions. Defendant nowappeals, and plaintiffs cross-appeal.
We hold that plaintiffs have failed to plead conduct sufficient to establish a prima facie claimof intentional infliction of emotional distress and, accordingly, the complaint must be dismissed.To establish a claim of intentional infliction of emotional distress, a plaintiff must allege morethan conduct that causes inconvenience or embarrassment, even if such conduct continues for aprotracted period of time (see AssociatesFirst Capital v Crabill, 51 AD3d 1186, 1188 [2008], lv denied 11 NY3d 702[2008]). Indeed, a plaintiff must demonstrate that the defendant's " 'conduct [was] so outrageousin character, and so extreme in degree, as to go beyond all possible bounds of decency. . . and [was] utterly intolerable in a civilized community' " (Murphy vAmerican Home Prods. Corp., 58 NY2d 293, 303 [1983], quoting Restatement [Second] ofTorts § 46, Comment d; see Marmelstein v Kehillat New Hempstead: The Rav Aron JofenCommunity Synagogue, 11 NY3d 15, 22-23 [2008]). Critically, "a cause of action forintentional infliction of emotional distress should not be entertained 'where the conductcomplained of falls well within the ambit of other traditional tort liability' " (Sweeneyv Prisoners' Legal Servs. of N.Y., 146 AD2d 1, 7 [1989], lv dismissed 74 NY2d 842[1989], quoting Fischer v Maloney, 43 NY2d 553, 558 [1978]). Clearly, the conductcomplained of here fell squarely within the bounds of the traditional torts of nuisance andtrespass; indeed, plaintiffs have already recovered damages for defendant's conduct under thosetheories, including punitive damages based on the intentional and malicious nature of theconduct. Accordingly, a cause of action for intentional infliction of emotional distress cannot lie(see Clark v Schuylerville Cent. SchoolDist., 24 AD3d 1162, 1164 [2005]; Butler v Delaware Otsego Corp., 203 AD2d783, 784-785 [1994]; Sweeney v Prisoner's Legal Servs. of N.Y., 146 AD2d at 7; seealso Leonard v Reinhardt, [*3]20 AD3d 510, 510 [2005];Baliva v State Farm Mut. Auto. Ins. Co., 286 AD2d 953, 954 [2001]).
In light of our conclusion, we need not reach defendant's assertion that Supreme Court erredin denying his motion to amend his answer to include the res judicata defense or plaintiffs' claimthat they were entitled to summary judgment on the issue of liability.
Malone Jr., Stein and McCarthy, JJ., concur; Cardona, P.J., not taking part. Ordered that theorder is modified, on the law, with costs to defendant, by reversing so much thereof as denieddefendant's motion; motion granted, summary judgment awarded to defendant and complaintdismissed; and, as so modified, affirmed.