Bunker v. Testa

234 A.D.2d 1004, 652 N.Y.S.2d 181, 1996 N.Y. App. Div. LEXIS 13848

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1996
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the harassment cause of action. "[WJhere severe mental pain or anguish is inflicted through a deliberate and malicious campaign of harassment or intimidation, a remedy is available in the form of an action for the intentional infliction of emotional distress” (Nader v General Motors Corp., 25 NY2d 560, 569).

The court also properly dismissed the assault cause of action. Taking plaintiffs’ allegations as true, as we must (see, Morone v Morone, 50 NY2d 481, 484), no cause of action for assault has been stated because the actions complained of did not cause an " 'imminent apprehension’ of 'harmful or offensive contact’ ” (Hayes v Schultz, 150 AD2d 522, 523).

Finally, the court properly refused to dismiss the causes of action alleging intentional infliction of emotional distress and a derivative loss of services to plaintiff William Cadwallader. Contrary to defendant’s assertions, the complaint alleges intentional acts by defendant, including yelling and gesturing obscenely at plaintiff Anne E. Bunker, following her home, refusing to leave the premises, following her children and family around and telling her that he knew where the children went to school and when they got out of school. Those alleged acts constitute conduct " ' "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” ’ ” (Howell v New York Post Co., 81 NY2d 115, 122). (Appeals from Order of Supreme Court, Cayuga County, Corning, J.—Dismiss Causes of Action.) Present—Denman, P. J., Lawton, Fallon, Doerr and Balio, JJ.