This was originally posted on the SGR Blog.
Did Facts Support Claim of Emotional Distress?
Occasional disputes between neighbors are a common occurrence of residential cooperative/condominium life. But, as a recent case illustrates, the Court may have to decide if an alleged course of false complaints and hallway confrontations constituted a legally cognizable claim for intentional or negligent infliction of emotional distress.
In two actions, next-door-neighbor shareholders of a Manhattan co-op were at loggerheads. Danielle Toussie, Michael Toussie, and Deborah Touisse sued the cooperative corporation, Park Towers Tenants Corp., alleging that the Board was wrongfully attempting to terminate their proprietary lease based on false complaints of loud noises and music emanating from their apartment.
Robert and Kara Silverman, who live next-door to the Toussie’s, alleged that Danielle regularly played music too loudly, slammed her door and, along with her parents, Michael and Deborah, engaged in other harassing conduct toward them. They asserted causes of action against the Toussie’s for nuisance and injunctive relief; against Danielle for intentional infliction of emotional distress or negligent infliction of emotional distress; and against Park Towers for a variety of causes of action. In their answer, the Toussie’s set forth counterclaims for intentional infliction of emotional distress, negligent infliction of emotional distress, and injunctive relief.
The Toussie’s also named Mei Mak, another resident of the same floor, in each counterclaim. Mak moved to dismiss the claims against her. The Toussie’s opposed the motion.
The Toussie’s alleged in their first counterclaim for intentional infliction of emotional distress, as pertinent to Mak, that the Silverman’s, since on or about January 27, 2017, “acting in concert with Mak, have subjected Danielle to a campaign of harassment and infliction of emotional distress by, among other things, repeatedly making false claims that [she] has been disturbing [them] by playing loud music and making loud noises in her apartment… in a deliberate, calculated and unlawful effort to pressure and coerce [Park Towers] to take action to unlawfully terminate [their] Proprietary Lease and have Danielle evicted from her home.” They claimed that, as a result of the false claims, in March 2018, Park Towers “unlawfully issued the first of a total of three purported notices of objectionable conduct.”
The Toussie’s also alleged that the Silverman’s and Mak spied on Danielle and, on information and belief, obtained unauthorized access to her private Instagram account for the purpose of tracking and monitoring her comings and goings, thereby intentionally harassing and stalking her. They charged that, at the Silverman’s’ instance, Mak registered false noise complaints against Danielle and, with the Silverman’s, confronted and intimidated Danielle, intentionally causing her to feel “unsafe and fearful in her own home,” resulting in severe emotional distress and resort to medical treatment.
In their counterclaim for negligent infliction of emotional distress, as pertinent to Mak, the Touissies alleged that the Silverman’s and Mak owed Danielle a duty of care to not interfere with her quiet enjoyment of her home, which duty they were alleged to have breached by unreasonably endangering Danielle’s physical safety and mental well-being by engaging in conduct that caused Danielle to fear for her safety in her own home.
In another counterclaim, as pertinent to Mak, the Toussie’s claimed that they lived in constant fear that the Silverman’s and Mak would continue to lodge false claims against them in their deliberate effort to force Park Towers to terminate their proprietary lease and have them evicted, and that the Silverman’s, acting in concert with and aided and abetted by Mak, orchestrated and instigated Park Tower’s ongoing, three-year campaign of harassment against them. Absent an adequate remedy at law, the Toussie’s asserted that it was necessary to enjoin and restrain the Silverman’s and Mak from continuing to lodge false claims against them.
In turn, Mak accused the Toussie’s of dragging her into their feud with the Silverman’s based on sparse “trivial and conclusory allegations,” which were bereft of facts setting forth how she stalked and harassed Danielle. Rather, she claimed, the sole specific allegations about Mak was that she and one of the Silverman’s loudly spoke in the hall, falsely complained about Danielle, spied on her, gained unauthorized access to her Instagram account, and confronted and intimidated her, making her feel unsafe and fearful in her own home, none of which amounted to the extreme and outrageous conduct that must support a cause of action for intentional infliction of emotional distress. Allegations that Mak engaged in some form of generic and conclusory harassment “in concert” with the Silverman’s, but absent an allegation of a causal connection to Danielle’s alleged injury, also did not suffice to state a claim.
Mak argued that the Toussie’s could not state a cause of action for negligent infliction of emotional distress as they alleged no duty owed them by her. Mak reiterated her argument that, absent allegations demonstrating that her conduct was extreme and outrageous or that she was acting in concert with the Silverman’s, the Toussie’s stated no claim for negligent infliction of emotional distress. In any event, Danielle’s allegations of fear were fatally conclusory.
In seeking a dismissal of the Toussie’s request for injunctive relief, Mak argued that such a claim constituted a remedy, not a cause of action.
Danielle alleged in an affidavit that she lodged many complaints to Park Towers about Mak’s harassing and abusive conduct toward her, offering emails she had sent to the managing agent reporting on Mak’s conduct.
In an email dated October 17, 2019, Danielle informed the managing agent that Mak, the Silverman’s best friend who lived on the same floor, had started to harass her, in that a few months earlier, she accosted her in the hallway as she exited her apartment and falsely and “rudely yell[ed] at [her]… to watch where [she was] going and that [she] almost knocked her over.” She also reported in the email that some time in September of 2019, Mak yelled at her, saying that she is a “terrible neighbor.” Then, on October 17, 2019, Mak slammed her door when she saw Danielle in the hallway, yelled at her, “What’s your problem?,” and continued to yell at her in the elevator.
By email dated February 10, 2020, Danielle expressed her suspicion that Mak’s claim that loud noise emanated from her apartment, lodged soon after the October 17 email, was fabricated in an attempt to influence the Park Towers board which was soon to meet and vote. She also offered an explanation of why the accusations against her were false.
By email dated February 27, 2020, the managing agent advised Danielle that an umbrella had been left outside her apartment and asked that she remove it as it constituted a violation of the city fire code. A photograph was attached. In response, Danielle denied that it was her umbrella and asserted that she was certain that the person who sent the photograph knew who owned it and she considered it harassment. Soon thereafter, she emailed the managing agent a photograph purportedly of a different umbrella outside a different apartment on her floor and queried whether the tenant of that apartment had received the same communication.
On February 8, 2021, Danielle emailed the managing agent that Mak, on seeing her in the hallway, slammed her front door “as loudly as possible that all the walls shook and I got an adrenaline rush from the shock of the sound.” By email dated February 27, 2021, she wrote that, as she stood by her front door, Mak “happened to come out of her apartment to go downstairs” and “start[ed] trying to video or take photos of [her] while her husband made rude comments to [her].”
In an email dated March 2, 2021, Danielle recounted to the managing agent her housekeeper’s report that, on February 21, 2021, as she rode the elevator with Mak, Mak “stared and glared at her and made her feel extremely uncomfortable,” and continued to do so as the housekeeper entered Danielle’s apartment.
And on August 27, 2021, Danielle complained by email to the managing agent that Mak videotaped her through her front door which was open in anticipation of a friend’s arrival.
Danielle also alleged that Mak used “highly offensive words when speaking with [the Silverman’s] about her as a bad person and bad neighbor[.] “Mak conspired with them to use an incident with Robert Toussie as a predicate for terminating the Toussie’s’ proprietary lease, and acted with the Silverman’s in viewing her social media. As a result, Danielle maintained, she had taken her program director’s advice to see the psychiatrist at the hospital where she worked and was then treated by private therapists.
Based on that alleged conduct, the Toussie’s argued that they alleged “a systematic pattern of harassment and abuse by Mak, acting in concert with the Silverman’s, over a period of several years…” that stated the elements of intentional infliction of emotional distress.
Mak denied the Toussie’s assertion that, because she engaged in the alleged conduct for an extended period of time, she may be held liable for intentional infliction of emotional distress. Observing that, according to the pertinent case law, it was the intensity of the conduct that was determinative, not its duration. She maintained that the allegation set forth in Danielle’s affidavit that she acted in concert with the Silverman’s was no less conclusory than her pleading and constituted an improper attempt to “tag” her with the Silverman’s conduct absent specifics. As negligent infliction of emotional distress also required as an element extreme and outrageous conduct, Mak contended that the Toussie’s failed to state such a claim as well, and that they fatally failed to allege when, where, or how she endangered Danielle’s physical safety, or caused Danielle to fear for her safety.
The elements of a cause of action for intentional infliction of emotional distress are: (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. To be sufficiently outrageous, the alleged conduct must go “beyond all possible bounds of decency” and be “utterly intolerable in a civilized community.” The elements of outrageous conduct served the dual function of filtering out petty and trivial complaints that did not belong in court, and assured that a claim of severe emotional distress was genuine. Such conduct must consist of more than mere insults, indignities, and annoyances.
While an individual act may be insufficiently extreme and outrageous to state a claim, a longstanding campaign of deliberate, systematic, and malicious harassment is actionable. The rigorous standard applied to individual acts does not apply to such a campaign.
The Court was required to determine whether Mak’s alleged conduct, in accosting and yelling at Danielle on three occasions between July and October 2019, falsely accusing her of leaving her umbrella outside her apartment in February 2020, glaring at her housekeeper in February 2021, twice photographing or taping her between February and August 2021, and acting in concert with the Silverman’s in harassing her by speaking ill of her with them, attempting to use an incident involving Robert Toussie as a basis for terminating the Toussie’s proprietary lease, and monitoring her with the Silverman’s by obtaining unauthorized access to her Instagram account, constituted a longstanding campaign of deliberate, systematic, and malicious harassment.
Here, the allegations, viewed in the light most favorable to the Toussie’s, reflected that Mak’s acts were deliberate as they were somewhat regular and directed solely at Danielle. It could not be said that they were not systematic and malicious given the alleged intent she shared with the Silverman’s of terminating the proprietary lease and evicting Danielle. Thus, Mak did not sustain her burden of demonstrating that, as a matter of law, the facts alleged did not state a cause of action for intentional infliction of emotional distress or negligent infliction of emotional distress. Because there were alleged causes of action for which the remedy of a permanent injunction might be appropriate, Mak offered an insufficient basis for dismissing the cause of action for such relief.