NEIGHBOR DISPUTES - THROWING THE KITCHEN SINK

Apparently, to this court, in the extreme neighbor dispute in a co-op, the proper cause of action is private nuisance and intentional infliction of emotional distress.

Mrishaj v. Moore, Date filed: 2023-06-12, Court: Supreme Court, New York, Judge: Justice Lucy Billings, Case Number: 156029/2022:

PLAINTIFFS’ FACTUAL ALLEGATIONS

Plaintiff Ervin Mrishaj purchased a proprietary lease for apartment D2K at 920 Pelhamdale Avenue, Pelham, New York, from nonparty cooperative Caroline Gardens Apartment Corporation October 5, 2021. He, his wife, plaintiff Tropoj Mrishaj, and their two children moved into the apartment at the beginning of November 2021. Defendant resided in apartment D1K, directly below plaintiffs.

Plaintiffs allege that every day, from November 5, 2021, to March 25, 2022, defendant constantly screamed profanities at plaintiffs and repeatedly struck her ceiling with a broom or similar hard object. They allege that defendant’s conduct adversely affected plaintiffs’ sleep and health and the development of the children, particularly plaintiffs’ child E.M., who ran screaming to her parents from the noise.

Defendant also had a personal relationship with the president of the cooperative’s board of directors, which defendant leveraged to convince the cooperative to issue a notice of termination to plaintiffs March 2, 2022. Plaintiffs subsequently vacated their apartment March 25, 2022. On June 22, 2022, defendant claimed to Ervin Mrishaj’s parents, who also resided in the same building, that she had evicted plaintiffs.

II. APPLICABLE STANDARDS

Upon a motion to dismiss the complaint, the court considers the complaint’s factual allegations as true. Sassi v. Mobile Life Support Servs., Inc., 37 N.Y.3d 236, 239 (2021); Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 N.Y.3d 169, 175 (2021); Yovich v. Montefiore Nyack Hosp., 212 A.D.3d 425, 426 (1st Dep’t 2023). In a motion pursuant to C.P.L.R. §3211(a)(7), defendant bears the burden to establish that the complaint “fails to state a viable cause of action.” Connolly v. Long Island Power Auth., 30 N.Y.3d 719, 728 (2018). Dismissal is warranted if the complaint fails to allege facts that “fit within any cognizable legal theory.” Sassi v. Mobile Life Support Servs., Inc., 37 N.Y.3d at 239.

A motion to dismiss based on documentary evidence pursuant to C.P.L.R. §3211(a)(1) will succeed only if admissible documentary evidence completely refutes plaintiffs’ factual allegations, resolving all factual issues as a matter of law. Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 N.Y.3d at 175; Nomura Home Equity Loan, Inc., Series 2006-FM2 v. Nomura Credit & Capital, Inc., 30 N.Y.3d 572, 601 (2017); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002); VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC, 171 A.D.3d 189, 193 (1st Dep’t 2019). The court may not consider defendant’s affidavit denying her conduct. Serao v. Bench-Serao, 149 A.D.3d 645, 646 (1st Dep’t 2017); Calpo-Rivera v. Siroka, 144 A.D.3d 568, 568 (1st Dep’t 2016); Asmar v. 20th & Seventh Assoc., LLC, 125 A.D.3d 563, 564 (1st Dep’t 2015); City of New York v. VJHC Dev. Corp., 125 A.D.3d 425, 426 (1st Dep’t 2015).

Defendant moves to dismiss each of plaintiffs’ claims: (1) unlawful eviction, (2) nuisance and harassment, (3) personal injury, (4) intentional infliction of emotional distress, (5) damage to Ervin Mrishaj’s leasehold, and (6) tortious interference with a contract or business relations. C.P.L.R. §§3211(a)(1) and (7). The court grants defendant’s motion in part as follows.

III. PLAINTIFFS’ UNLAWFUL EVICTION CLAIM

New York Real Property Actions and Proceedings Law (R.P.A.P.L.) §853 provides a cause of action for unlawful eviction, which allows plaintiffs to recover treble damages, if defendant forcibly or unlawfully disseized, ejected, or removed plaintiffs from real property. Although the removal need not be forcible, the amendment adding unlawful as an alternative to forcible means was intended to remedy a lessor’s other, nonforcible, but physical impediments to lessees’ possession of real property, such as changing the door locks or removing the lessees’ personal property when the lessees are away from the premises. Hood v. Koziej, 140 A.D.3d 563, 565 (1st Dep’t 2016); Mayes v. UVI Holdings, 280 A.D.2d 153, 160 (1st Dep’t 2000).

The complaint alleges that defendant’s repeated banging on her ceiling below plaintiffs’ apartment and her screaming of profanities, frightening the children and interrupting plaintiffs’ sleep, caused plaintiffs to leave their apartment after several months. Plaintiffs do not allege that defendant deprived them of access to their apartment. Weiss v. Bretton Woods Conominium II, 203 A.D.3d 1100, 1102 (2d Dep’t 2022). They still owned and were allowed to use their apartment. Instead, plaintiffs decided to leave their apartment because defendant caused the conditions to become intolerable, akin to a constructive eviction, which does not qualify as a violation of R.P.A.P.L. §853. Moreover, like constructive eviction, an eviction in violation of R.P.A.P.L. §853 applies to lessor-lessee disputes. Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 82 (1970); 7001 E. 71st St., LLC v. Millenium Health Servs., 138 A.D.3d 573, 573 (1st Dep’t 2016); Schwartz v. Hotel Carlyle Owners Corp., 132 A.D.3d 541, 542 (1st Dep’t 2015); Pacific Coast Silks, LLC v. 247 Realty, LLC, 76 A.D.3d 167, 172 (1st Dep’t 2010). Section 853 is designed to safeguard the rights of lessees against their lessors, not against neighboring lessees. No authority discloses the statute’s application outside a lessor-lessee dispute.

In opposition to defendant’s motion, plaintiffs emphasize their allegation that on June 22, 2022, defendant admitted to evicting them, but again plaintiffs do not allege that defendant actually removed them or their personal property from their apartment or otherwise deprived them of their ownership or possession of their apartment. Although R.P.A.P.L. §853 does not require that defendant forcibly removed them or their personal property or forcibly changed their apartment door lock, the statute at minimum requires unlawful conduct. Hood v. Koziej, 140 A.D.3d at 566; Rocke v. 1041 Bushwick Ave. Assoc., Inc., 169 A.D.2d 525, 525 (1st Dep’t 1991). Her mere claim that she evicted plaintiffs was not unlawful. Therefore, absent allegations of a physical, unlawful removal, plaintiffs fail to state a claim for unlawful eviction.

IV. NUISANCE AND HARASSMENT

A private nuisance claim requires factual allegations that defendant’s action or omission substantially, intentionally, and unreasonably interfered with plaintiffs’ right to use and enjoy real property. Domen Holding Co. v. Aranovich, 1 N.Y.3d 117, 123 (2003); Copart Indus., Inc. v. Consolidated Edison Co. of New York, Inc., 41 N.Y.2d 564, 568 (1977); O’Hara v. Board of Directors of the Park Ave. & Seventy-Seventh St. Corp., 206 A.D.3d 476, 477 (1st Dep’t 2022). Defendant’s objectionable conduct must be continuous or recurring. Domen Holding Co. v. Aranovich, 1 N.Y.3d at 123; Berenger v. 261 W. LLC, 93 A.D.3d 175, 182 (1st Dep’t 2012); Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 A.D.3d 38, 41 (1st Dep’t 2011).

Plaintiffs’ allegations show that defendant engaged in continuous and recurring conduct that interfered with their sleep and enjoyment of their apartment. Therefore the court denies defendant’s motion to dismiss plaintiffs’ nuisance claim. O’Hara v. Board of Directors of the Park Ave. & Seventy-Seventh St. Corp., 206 A.D.3d at 477. The court dismisses plaintiffs’ claim for harassment, however, as “New York does not recognize a common-law cause of action for harassment.” Garza v. Nunz Realty, LLC, 187 A.D.3d 467, 467 (1st Dep’t 2020)(quoting Edelstein v. Farber, 27 A.D.3d 202, 202 (1st Dep’t 2006)).

V. PERSONAL INJURY

Plaintiffs vaguely allege a claim for “personal injury” without further specification. Plaintiffs insisted at oral argument, however, that their allegations support claims for both assault and a prima facie tort. To establish assault, plaintiffs must show physical conduct causing their apprehension of immediate harmful contact. Waterbury v. New York City Ballet, Inc., 205 A.D.3d 154, 166 (1st Dep’t 2022); Corcoran v. City of New York, 186 A.D.3d 1151, 1151 (1st Dep’t 2020). Yet the verified complaint and plaintiffs’ affidavits, at best, describe only their apprehension of defendant’s disturbing loud noise and profanities. Plaintiffs nowhere describe any threat of immediate physical harm: that defendant was about to strike through the ceiling or through plaintiffs’ door into their apartment or attack plaintiffs elsewhere in the building, for example. Waterbury v. New York City Ballet, Inc., 205 A.D.3d at 166; Corcoran v. City of New York, 186 A.D.3d at 1151; Joon Song v. MHM Sponsors Co., 176 A.D.3d 572, 573 (1st Dep’t 2019).

To establish a prima facie tort, plaintiffs must show (1) intentional infliction of harm, (2) causing special damages, in the form of a specific, measurable loss, (3) without justification or excuse, (4) by otherwise lawful acts. Posner v. Lewis, 18 N.Y.3d 566, 570 n.1 (2012); Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142-43 (1985); Curiano v. Suozzi, 63 N.Y.2d 113, 117 (1984); Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 332 (1983). Although plaintiffs allege that they lost their apartment, they do not specify that they sold it for less than their investment in it or that they could not find a comparable apartment for the same price. Lewis v. Pierce Bainbridge Beck Price Hecht LLP, 195 A.D.3d 518, 519 (1st Dep’t 2021); Hakim v. James, 169 A.D.3d 450, 452 (1st Dept 2019); Britt v. City of New York, 151 A.D.3d 606, 607 (1st Dep’t 2017); Wigdor v. SoulCycle, LLC, 139 A.D.3d 613, 614 (1st Dep’t 2016). Even if plaintiffs’ loss of their apartment constitutes special damages, however, their allegations about defendant’s conduct, particularly her admission that she effected plaintiffs’ eviction, demonstrate that she acted out of a motive to evict plaintiffs, rather than pure disinterested malevolence. Hakim v. James, 169 A.D.3d at 452; Britt v. City of New York, 151 A.D.3d at 607; AREP Fifty-Seventh, LLC v. PMGP Assoc., L.P., 115 A.D.3d 402, 403 (1st Dep’t 2014). Last, plaintiffs’ prima facie tort claim duplicates their claim for intentional infliction of emotional distress. Maak v. Medina Professional Firefighters Assn., IAFF Local 2161, 186 A.D.3d 1016, 1017 (4th Dep’t 2020). Therefore the court grants defendant’s motion to dismiss plaintiffs’ claim for “personal injury,” regardless whether it suggests a claim for assault or a prima facie tort.

VI. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

A claim for intentional infliction of emotional distress requires plaintiffs to demonstrate (1) that defendant engaged in extreme and outrageous conduct, (2) with intent to cause or in disregard of a substantial probability that such conduct would cause severe emotional distress, (3) a causal connection between defendant’s acts and plaintiffs’ injury, and (4) severe emotional distress. Chanko v. American Broadcasting Cos. Inc., 27 N.Y.3d 46, 56 (2016); Silverman v. Park Towers Tenants Corp., 206 A.D.3d 417, 418 (1st Dep’t 2022); Waterbury v. New York City Ballet, Inc., 205 A.D.3d at 165. In particular, plaintiffs must show that defendant’s conduct was “beyond all possible bounds of decency” and “utterly intolerable in a civilized community.” Chanko v. American Broadcasting Cos. Inc., 27 N.Y.3d at 56; Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 N.Y.3d 15, 23 (2008).

Plaintiffs allege that defendant intentionally harassed them from within her apartment by constantly shouting profanities and loudly striking her ceiling, which disrupted plaintiffs’ sleep and adversely affected their health, for over four months, with the objective of evicting them. They allege that defendant yelled the profanities despite her knowledge of the young children residing in the apartment and that her conduct traumatized at least one child. Tropoj Mrishaj attests that, when defendant banged on her ceiling and shouted at plaintiffs, their child ran to her mother screaming and crying and suffered long term effects from these repeated episodes. She refused to sleep or play alone. At night she frequently woke up terrified by nightmares. Every day she threw tantrums. She became too distracted to focus and learn and changed from happy and friendly to angry and distant. Assuming these allegations to be true, they describe a campaign of indecent, intolerable, and uncivilized conduct intended to be offensive and causing severe mental and physical harm to at least one child that satisfies the high bar of an intentional infliction of emotional distress claim. Silverman v. Park Towers Tenants Corp., 206 A.D.3d at 418; Waterbury v. New York City Ballet, Inc., 205 A.D.3d at 165.

In support of the motion, defendant presents text messages indicating an amicable relationship between plaintiffs and defendant. Even assuming that defendant offers this unsworn hearsay to show plaintiffs’ state of mind and not impermissibly for the truth of the messages, they do not constitute “documentary evidence” that may support defendant’s motion. C.P.L.R. §3211(a)(1); Kalaj v. 21 Fountain Place, LLC, 169 A.D.3d 657, 658 (2d Dep’t 2019). They do not completely refute plaintiffs’ allegations, since they do not encompass every interaction between the parties from November 5, 2021, to March 25, 2022. Rosario v. Hallen Constr. Co., Inc., 214 A.D.3d 544, 544 (1st Dep’t 2023); Whitestone Constr. Corp. v. F.J. Sciame Constr. Co. Inc., 194 A.D.3d 532, 534 (1st Dep’t 2021). As Ervin Mrishaj explains, the text messages predated plaintiff’s move into their apartment or reflect his diplomatic efforts early in their tenancy to appease defendant and diffuse the tension. Therefore the court denies defendant’s motion to dismiss plaintiffs’ claim for intentional infliction of emotional distress.

VII. DAMAGE TO THE LEASEHOLD

The court considers plaintiffs’ claim for damage to their leasehold abandoned, as they did not oppose defendant’s motion to dismiss this claim. Disla v. Biggs, 191 A.D.3d 501, 501 (1st Dep’t 2021); Burgos v. Premiere Properties, Inc., 145 A.D.3d 506, 508 (1st Dep’t 2016). Moreover, this claim merely reiterates that defendant’s conduct impaired use of their apartment, which duplicates their private nuisance claim. Therefore the court grants defendant’s motion to dismiss plaintiffs’ claim for damage to their leasehold.

VIII. TORTIOUS INTERFERENCE WITH A CONTRACT OR BUSINESS RELATIONS

Plaintiffs’ final claim alleges that defendant caused the cooperative to issue a notice of termination to plaintiffs, but they admit that the cooperative did not actually evict them. Thus plaintiffs fail to substantiate how they were injured as a result of defendant’s alleged interference with plaintiffs’ contract or other relationship with the cooperative, Joon Song v. MHM Sponsors Co., 176 A.D.3d at 572, which warrants dismissal of this claim as well.

IX. CONCLUSION

Finally, plaintiffs claim disclosure will defeat dismissal of claims that currently fail. C.P.L.R. §3211(d). The evidence plaintiffs expect to present, however, is not from defendant, but is from plaintiffs’ own experts, which plaintiff were free to present now in opposition to dismissal. Nor do plaintiffs suggest what claims plaintiffs’ experts would support other than intentional infliction of emotional distress, which already survives.

Consequently, for the reasons explained above, the court grants defendant’s motion to dismiss plaintiffs’ claims except their claims for private nuisance and intentional infliction of emotional distress. C.P.L.R. §3211(a)(1) and (7). Defendant shall answer the remaining claims in the complaint within 10 days after service of this order with notice of entry. C.P.L.R. §3211(f). The parties shall attend a Preliminary Conference via video July 18, 2023, at 11:00 a.m. This decision constitutes the court’s order.

Dated: June 12, 2023

WHO GETS THE DOG?

Mundo v Weatherson, 2022 NY Slip Op 50125(U), Decided on February 25, 2022, Civil Court Of The City Of New York, New York County, Ally, J:

"Plaintiff commenced this action by service of summons and complaint, seeking to recover possession of a Chihuahua dog named Maximus. In the complaint, plaintiff alleges that Maximus (valued at approximately $2,500), is being wrongfully detained by defendant because plaintiff holds superior right to possession. On August 17, 2020, plaintiff filed an amended complaint asserting causes of action for replevin, declaratory judgment, and intentional infliction of emotional distress.

Defendant joined issue by service of a verified answer on September 16, 2020. In his answer, defendant claims that defendant is Maximus' legal owner and therefore entitled to sole and exclusive possession. Defendant further alleges that plaintiff breached a pre-existing agreement between the parties whereby they agreed to jointly share custody of Maximus in two-week intervals. Finally, defendant contends that plaintiff fails to state a cause of action for intentional infliction of emotional distress.

On November 30, 2020, plaintiff moved by order to show cause for a preliminary injunction requiring defendant to return Maximus to plaintiff pending resolution of the action. In an order dated December 1, 2020, the Hon. Sabrina Kraus directed the parties to continue the joint custody arrangement in two-week intervals pending the resolution of the action on its merits.

A bench trial was held before this Court on January 2, January 6, and January 27, 2022. At trial, both parties were represented by counsel. On February 4, 2022, the trial concluded with the submission of written trial memoranda.

Findings of Fact

Based upon the credible testimony at trial, the Court adduced the following facts:

In summer of 2016, plaintiff and defendant were involved in a romantic relationship. Over the course of their relationship, the parties had discussed getting a dog. Defendant, a [*2]veterinarian, had previously owned dogs and had a preference for adopting a rescue dog as an alternative to buying one. Plaintiff, who had never owned a dog, was interested in getting a dog but had specific preferences for size and temperament that he believed would suit the parties' living situation and lifestyle.

In June 2016, defendant was completing his veterinary internship at the Animal Medical Center (AMC) when a colleague informed him that a patient's owner, Vanessa Corchado, was concerned about her ability to care for her dog (then named Oreo) due to the costs and requirements of necessary specialized care. Defendant was further informed that Corchado was exploring the possibility of rehoming Oreo. Oreo remained at AMC receiving care for several days. Upon Corchado's return to AMC, defendant discussed with her the possibility of defendant taking over ownership of Oreo and Corchado agreed.

Typically, AMC protocol governing relinquished animals requires the animal to stay within the hospital for a duration of time before going to a shelter, whereupon aspiring adopters were required to complete an application for approval to adopt. To circumvent this protocol, however, defendant arranged for a same-day exchange directly with Corchado. After sending photos and other information about Oreo to plaintiff, defendant met with Corchado at a location down the street from AMC. Corchado gave Oreo over to defendant and defendant provided Corchado with his contact information. Defendant then contacted plaintiff to arrange for plaintiff to retrieve Oreo, and defendant returned to work. Upon retrieving Oreo, plaintiff brought Oreo to his home and rechristened him Maximus. As the parties at the time did not reside together, Maximus lived with plaintiff in plaintiff's home for a few weeks before defendant moved in.

For the most part, the parties split the various tasks associated with dog ownership. Plaintiff arranged for Maximus to be neutered, microchipped, and ensured Maximus was caught up on vaccinations. Defendant, in his capacity as a veterinarian, examined Maximus and provided other specialized treatment Maximus required. Defendant also paid for food and vaccinations, for which he was able to receive a discounted rate. Plaintiff set up the microchip monitoring account and New York City license. Plaintiff also generally took responsibility for bringing Maximus to the veterinarian for routine checkups and procedures.

Both parties took Maximus to their respective workplaces on a semi-regular basis, and both parties took Maximus on walks and other activities. Plaintiff often brought Maximus on trips to his friends' summer house on Fire Island, both with and without defendant. Elizabeth Wheaton, a close friend of plaintiff, testified that Maximus was around enough that the vacation house had its own dog bed and other supplies ready for plaintiff's visits. When the couple traveled and were unable to bring Maximus along, plaintiff's friends or family served as dog sitters, guided by a detailed document drafted by plaintiff known as "Max's Playbook."

The parties ended their romantic relationship approximately three years later in June 2019. Plaintiff moved out of their shared apartment in August 2019 and Maximus remained with plaintiff while defendant finalized his new living arrangements. The parties then commenced a voluntary "joint custody" arrangement whereby each party would have Maximus for two or three weeks at a time before bringing the dog to the other party in turn. This arrangement continued relatively amicably until January 2020. Around that time, plaintiff testified, he discovered that defendant had been unfaithful during their relationship. On the day plaintiff was scheduled to bring Maximus to defendant's home, plaintiff instead left Maximus at home and went to confront defendant about the alleged infidelity. Maximus would remain in plaintiff's care for the next six months.

In July 2020, plaintiff brought Maximus to AMC for a routine checkup. Unbeknownst to plaintiff, defendant had been notified about the upcoming appointment by staff at AMC. While Maximus was at AMC, defendant entered the facility through a separate entrance. When the appointment was finished, AMC released Maximus to defendant, who left with Maximus again through a separate exit. Plaintiff, who had not been permitted into the clinic area due to covid-19 restrictions, only learned about defendant having collected Maximus upon inquiring about the wait to staff. Plaintiff commenced the instant action shortly thereafter.

Certain facts or events were disputed by the parties through conflicting testimony at trial. Plaintiff contends that the bulk of Maximus' daily care fell to him: plaintiff testified that he managed the dog's licensing, researched pet insurance, and managed his regular veterinary appointments. Plaintiff also claims that he walked Maximus the majority of the time and brought Maximus to his workplace on a regular basis. Plaintiff maintains that while defendant did sometimes bring Maximus to the clinic, when defendant did so Maximus was often confined to a kennel and was not as free to walk about as he did so at plaintiff's workplace. As corroboration, plaintiff presented the testimony of Ivan Carriel, a doorman at the building where the parties resided with Maximus, Elizabeth Wheaton, a close friend of plaintiff, and Emma Hansen, a colleague of plaintiff.

Defendant maintains that Maximus was always understood to be "his" dog, both as a condition of obtaining Maximus from his previous owner and throughout his relationship with plaintiff. Defendant asserted that contrary to plaintiff's testimony, defendant was equally responsible for walking Maximus and other daily tasks. Defendant also presented the testimony of Vanessa Corchado, who he asserts only relinquished Maximus upon defendant's representation that he would be the dog's sole owner.

Analysis

Replevin

Traditionally, New York courts have treated companion animals as personal property; as with other personal property, courts resolved disputes by evaluating which party had the superior possessory right to the animal (Travis v Murray, 42 Misc 3d 447 [Sup Ct, New York County 2013]). Accordingly, the appropriate action to recover possession of a companion animal in non-matrimonial contexts lies in replevin (see, e.g. LeConte v Lee, 35 Misc 3d 286 [Civ Ct, New York County 2011]).

More recently, however, courts have recognized the myriad ways in which companion animals are much more than simple possessions. In Raymond v Lachmann, the First Department acknowledged "the cherished status accorded to pets in our society, the strong emotions engendered by disputes of this nature, and the limited ability of the courts to resolve them satisfactorily" (264 AD2d 340, 341 [1st Dept 1999]). In doing so, the court established that simple adherence to traditional principles of property ownership is outmoded and inappropriate where a treasured pet is involved, and that a court must also consider those intangible and subjective factors invariably involved.

An applicable standard was further developed by the court in Travis v Murray (42 Misc 3d 447 [Sup Ct, New York County 2013]), a matrimonial dispute. In an eloquent and detailed discussion, the Travis court examined the wide variety of approaches taken by the courts in several jurisdictions, including that in Raymond. The Travis court ultimately concluded that a refinement of the "best for all concerned" standard applied by the Raymond court struck the best balance between a strict property analysis and the more extensive interests analysis involved in [*3]child custody cases. This standard has been subsequently applied by several courts (see, e.g. Mitchell v Snider, 51 Misc 3d 1229[A][Civil Ct, New York County 2016]; Ramseur v Atkins, 44 Misc 3d 1209[A][Civ Ct, New York County 2014]; Hennet v Allan, 43 Misc 3d 542 [Sup Ct, Albany County 2014])).

Following the "best for all concerned" approach, this Court will therefore examine not just those factors that would weigh towards the parties' respective possessory rights, but also "intangible factors such as why each party would benefit from having the dog in his or her life and why the dog has a better chance of prospering, loving, and being loved in the care of one party or the (Mitchell v Snider, 51 Misc 3d 1229[A] at *2 [Civ Ct, New York County 2016]). Relevant facts include those that reflect each party's ability to meet the dog's physical and emotional needs, including financial circumstances, access to outdoor activities, opportunities for exercise and socialization, access to veterinary care and necessary supplies, and the time required to meet the dog's need's on a daily basis.

Based upon the evidence adduced at trial, the Court finds first that the traditional markers of ownership are non-dispositive. Maximus was obtained without payment, and the costs and tasks associated with ownership (such as vaccinations, licensing, insurance) were split between the parties. It is important to note that the issue of ownership may have been clearer had Maximus been properly adopted according to AMC protocol. Notwithstanding, it is evident that both parties intended to and did benefit from circumventing the established rules to obtain Maximus more quickly and without cost.

While defendant repeatedly maintained that he was only ever understood to be the sole owner and Maximus simply "shared" with plaintiff, the parties' subsequent conduct (dividing of expenses and documentation, sharing in Maximus' daily care, holding out to other members of the community that Maximus was "their" dog) further points to shared ownership. Whether certain documents had the name of one or the other party is less relevant where clearly each party contributed both effort and money, and where both parties were recognized by others as co-owners.

The Court acknowledges that each party has, in turn, resorted to a bad faith tactic in an effort to retain possession of Maximus: first plaintiff, in failing to return Maximus in accordance with their informal shared custody agreement, then defendant in surreptitiously removing Maximus from his veterinary appointment. While the above behavior is not excusable, the Court also recognizes that each party cares deeply for the Maximus and derives much from Maximum's companionship. And unlike in other cases examined by this Court, there is no clear discrepancy in the parties' intentions; for example, neither party seeks to exploit Maximus for income-generating practices such as breeding. And it is clear that the party who emerges unsuccessful from this litigation will feel the loss of a dear companion. Nonetheless, the Court must make the—albeit difficult—determination of which party would benefit most from retaining possession of Maximus and which party is in the position to best provide for Maximus' physical and emotional needs.

Each party has demonstrated the knowledge and financial capacity to provide for Maximums' needs, and each is prepared to commit his time and energy to do so. However, based upon the evidence adduced at trial, the Court finds that plaintiff has met his burden to show that possession of Maximus should be awarded to him. Plaintiff has testified that his work schedule provides him a substantial amount of time to spend with Maximus and the ability to bring him to work on a frequent basis. Indeed, plaintiff's colleague testified that Maximus appeared [*4]comfortable at the office and was afforded freedom to roam when he wanted. Plaintiff's longtime friend, Elizabeth Wheaton, testified that plaintiff structured his non-work hours around Maximus' needs, ensuring that Maximus' needs were met before all else. She further testified that Maximus so frequently accompanied their group of friends that their own friends and family were well acquainted with the dog. Finally, the testimony established that when plaintiff and defendant were not able to bring Maximus someplace, Maximus' care fell to plaintiff's friends or family, guided by a lengthy and detailed document drafted by plaintiff himself.

Defendant testified that his work hours allow more limited time to spend with Maximus, and that he brought Maximus to work less frequently. There was no testimony as to who would care for Maximus in the event that defendant had to travel or otherwise was unable to care for him. During the period of time that plaintiff held Maximus past his agreed-upon time period, defendant did not make efforts to recover him until collecting him from the veterinary appointment several months later. To the extent that defendant, a veterinarian, currently provides the specialized care that Maximus requires, he conceded that such care could readily be provided by another veterinarian and facility.

In sum, plaintiff has shown that he has intimate knowledge of Maximus' physical and emotional needs and that he has the ability to spend significant time caring for and socializing Maximus. Plaintiff has further shown that he can care for Maximus while at work and on vacation, and that Maximus has become such an ingrained part of plaintiff's life that his friends and family have themselves taken on parts of Maximus' care.

As such, the Court finds that plaintiff has established that awarding plaintiff possession of Maximus would be in the best interest for all concerned. The Court therefore awards full possession of Maximus to plaintiff.

Intentional Infliction of Emotional Distress

With regard to plaintiff's cause of action for intentional infliction of emotional distress, the Court finds that plaintiff has not met his burden. To prevail in an action for intentional infliction of emotional distress, a plaintiff must show:

(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. Liability has been found only where the conduct has been 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 society.

(Chanko v American Broadcast Companies, Inc, 27 NY3d 46, 56 [2016]). Here, the Court finds that the evidence adduced at trial is not sufficient to establish that defendant's conduct satisfied the elements of the cause of action. Accordingly, this cause of action is dismissed.

Conclusion

Based upon the foregoing, the Court finds that plaintiff has established the awarding possession of Maximus to plaintiff is in the best interests for all concerned. Accordingly, it is hereby

ORDERED and ADJUDGED, that plaintiff is awarded full possession of Maximus to the complete exclusion of defendant; and it is further

ORDERED, that the two-week alternate sharing arrangement shall cease with service of this order with notice of entry upon defendant; and it is further

ORDERED, that plaintiff's cause of action for intentional infliction of emotional distress [*5]is dismissed with prejudice.

This constitutes the decision, order and judgment of this Court.

PET DEEMED TO BE PROPERTY FOR MALPRACTICE CLAIM

Plaintiffs commenced this action alleging that the Defendants breached the appropriate standards of veterinary care in the treatment of their cat and sought to recover compensatory damages incurred for the treatment in the sum of $15, 262.22 plus $10,000.00 for the time and lost wages suffered by the plaintiffs, plus, $10,000.00 for conscious pain and suffering experienced by the cat, along with $5,000.00 representing the fair market value of the cat and punitive damages in the amount of $250,000.00.

Ritter v. BLUEPEARL OPERATIONS LLC, 2021 NY Slip Op 30341 - NY: Supreme Court February 5, 2021:

"Defendants' motion is granted in its entirety. Specifically, Plaintiff's Sixth Cause of Action for intentional infliction of emotional distress is dismissed because in New York there is no cause of action for emotional distress damages as result of negligent care and treatment rendered to one's animal, which is considered to be property. Jason v Parks, 224 AD2d 494 (2d Dept 1996)".

CAN YOU SUE YOUR SPOUSE FOR MAKING YOUR DIVORCE SO NASTY

Chen v Dehjung Deborah Wang, 2018 NY Slip Op 06076, Decided on September 19, 2018. Appellate Division, Second Department:

"In January 2016, the plaintiff commenced this action against the defendant, his former wife, alleging prima facie tort, private nuisance, intentional infliction of emotional distress, and, in effect, negligent infliction of emotional distress. All of the allegations supporting the causes of action stem from the parties' acrimonious divorce, which was finalized in May 2016.

We agree with the Supreme Court's determination granting the defendant's motion for summary judgment dismissing the complaint. The defendant established her prima facie entitlement to judgment as a matter of law and, in opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557). The plaintiff's evidence does not support a meritorious cause of action alleging either prima facie tort (see Ahmed Elkoulily, M.D., P.C., v New York State Catholic Healthplan, Inc., 153 AD3d 768; Trulio v Village of Ossining, 153 AD3d 577), or private nuisance (see Berland v Chi, 142 AD3d 1121; Taggart v Costabile, 131 AD3d 243). Further, New York does not recognize a cause of action alleging the intentional infliction of emotional distress between spouses or former spouses based upon allegations of events that occurred during the marriage (see Xiao Yang Chen v Fischer, 6 NY3d 94, 100 n 2; Sareen v Sareen, 51 AD3d 765; Nacson v Semmel, 292 AD2d 432). In any event, the conduct complained of does not rise to the level of extreme and outrageous behavior required for a valid claim of intentional infliction of emotional distress (see Video Voice, Inc. v Local T.V., Inc., 156 AD3d 848; Brunache v MV Transp., Inc., 151 AD3d 1011)."

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

A cause of action often pleaded but the elements were recently explained in CHANKO v. American Broadcasting Cos., Inc., 2016 NY Slip Op 2478 - NY: Court of Appeals 2016:

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This Court has enumerated four elements of a cause of action for intentional infliction of emotional distress: "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress" (Howell v New York Post Co., 81 NY2d 115, 121 [1993]). "`Liability has been found only where the conduct has been 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, 81 NY2d at 122, quoting Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983] [internal quotation marks and citation omitted]). Here, the complaint's fifth cause of action addresses each element above and alleges that the Hospital and Schubl allowed ABC to broadcast and disseminate the footage of the final moments of decedent's life, without the knowledge or consent of decedent or plaintiffs. The complaint alleges that plaintiffs watched the episode and were shocked and upset, that "[d]efendants acted intentionally, recklessly, willfully, maliciously and deliberately," and that it was foreseeable that plaintiffs would be caused to suffer emotional distress. Alternatively, the complaint alleges that "defendants acted with reckless disregard for the probability that they would cause plaintiffs to suffer emotional distress," and that defendants knew or should have known that emotional distress was a likely result of their actions. The complaint further alleges that plaintiffs experienced emotional distress due to defendants' conduct, and that "[d]efendants' conduct was extreme and outrageous, beyond all possible bounds of decency, utterly intolerable in a civilized community, and without privilege."

Although these allegations facially address all of the required elements, they are not sufficient to support this cause of action because they do not rise to the level necessary to satisfy the outrageousness element — the element most susceptible to a determination as a matter of law — which is designed to filter out petty complaints and assure that the emotional distress is genuine (see Howell, 81 NY2d at 121). Noting that "the requirements . . . are rigorous, and difficult to satisfy," we have commented that, "of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous" (Howell, 81 NY2d at 122 [internal quotation marks and citation omitted] [emphasis added]).

The conduct at issue here for purposes of the fifth cause of action — the broadcasting of a recording of a patient's last moments of life without consent — would likely be considered reprehensible by most people, and we do not condone it. Nevertheless, it was not so extreme and outrageous as to satisfy our exceedingly high legal standard^[2]. The footage aired by ABC was edited so that it did not include decedent's name, his image was blurred, and the episode included less than three minutes devoted to decedent and his circumstances. We cannot conclude that defendants' conduct in allowing the broadcasting of that brief, edited segment is more outrageous than other conduct that this Court and the Appellate Division Departments have determined did not rise to the level required to establish "extreme and outrageous conduct" sufficient to state a cause of action for intentional infliction of emotional distress. For example, we did not deem a newspaper's conduct sufficiently outrageous when it published a picture of a person in a psychiatric facility — thereby informing the world that the photographed person was a patient at such a facility — even though the residents were photographed by someone trespassing on facility grounds and the facility had expressly requested that the newspaper not publish pictures of residents (see Howell, 81 NY2d at 118). Similarly, the conduct of a television station has been deemed insufficiently outrageous when the station displayed recognizable images of rape victims after repeatedly assuring them that they would not be identifiable (see Doe v American Broadcasting Cos., 152 AD2d 482, 483 [1st Dept 1989], appeal dismissed 74 NY2d 945 [1989]).

We conclude that defendants' conduct here, while offensive, was not so atrocious and utterly intolerable as to support a cause of action in the context of this tort (see Marmelstein v Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 NY3d 15, 22-23 [2008]; Freihofer v Hearst Corp., 65 NY2d 135, 143-144 [1985])^[3] . Hence, there is no need to address whether the newsworthiness privilege is applicable.

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[2] We note that, after viewing the broadcast, one of decedent's sons (who is a physician) submitted an affidavit commenting on, among other things, what he perceived as highly inappropriate conduct on Schubl's part, namely, focusing on the camera and giving an interview in the emergency room, instead of concentrating on providing lifesaving medical services to decedent. However, plaintiffs have never relied — and do not now rely — on such conduct to supply a basis for their claim for intentional infliction of emotional distress. We, therefore, have no occasion at this time to express an opinion as to whether allegations of that nature would be sufficient to state a cause of action.
[3] Unlike plaintiffs' fourth cause of action, the fifth cause of action cannot rely on additional evidence that might be revealed in discovery. To state a cause of action for intentional infliction of emotional distress, plaintiffs must already be aware of the offending conduct and have suffered emotional distress as a result thereof. Thus, dismissal of this claim is appropriate at this stage of the litigation."