                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 23, 2017                   519496
________________________________

XIAOKANG XU,
                      Respondent,
     v                                      MEMORANDUM AND ORDER

XIOLING SHIRLEY HE,
                    Appellant.
________________________________


Calendar Date:   January 17, 2017

Before:   Peters, P.J., McCarthy, Egan Jr., Rose and Mulvey, JJ.

                             __________


     Xioling Shirley He, Clifton Park, appellant pro se.

     Xiaokang Xu, Greendale, Wisconsin, respondent pro se.

                             __________


Mulvey, J.

      Appeals (1) from an order and judgment of the Supreme Court
(Ferradino, J.), entered May 21, 2014 and June 4, 2014 in
Saratoga County, which, upon an inquest, awarded damages to
plaintiff, and (2) from an order of said court, entered June 4,
2014 in Saratoga County, which granted plaintiff an order of
protection against defendant.

      The parties were divorced in 2005 and have been involved in
multiple actions and proceedings since. In April 2013, plaintiff
commenced this action alleging several causes of action. When
defendant failed to answer, Supreme Court, on plaintiff's motion,
granted plaintiff a default judgment and ordered an inquest on
damages. After the inquest, Supreme Court awarded plaintiff
$5,000 on each of plaintiff's causes of action for libel per se,
intentional infliction of emotional distress, misuse of legal
procedure/abuse of process and violation of plaintiff's right to
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privacy. Supreme Court also awarded plaintiff $5,000 in punitive
damages and $10,000 in counsel fees, and granted plaintiff a
permanent injunction restraining defendant from certain actions
for five years. In a separate order, the court granted plaintiff
an order of protection and full stay away order for a period of
five years. Defendant appeals.

      By failing to answer the summons and complaint, defendant
is deemed to have admitted "all traversable allegations in the
complaint, including the basic issue of liability" (Amusement
Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880
[1985]) and, at an inquest, defendant is only permitted to
contest the amount of damages (see D D & P Realty, Inc. v
Robustiano, 68 AD3d 1496, 1497 [2009]). Supreme Court's award of
damages is subject to this Court's review on appeal to determine
"whether the awards deviate materially from what would be
considered reasonable compensation" (Morrisseau v State of New
York, 265 AD2d 647, 648 [1999]; see CPLR 5501 [c]; Garrison v
Lapine, 72 AD3d 1441, 1442 [2010]). Since awards for any
personal injuries, especially like those claimed by plaintiff,
"are not subject to precise quantification, examination of
comparable cases is necessary to determine whether the award
materially deviated from reasonable compensation" (Nolan v Union
Coll. Trust of Schenectady, N.Y., 51 AD3d 1253, 1256 [2008]
[internal quotation marks and citation omitted], lv denied 11
NY3d 705 [2008]).

      We find ample support for Supreme Court's assessment of
damages on the causes of action for libel per se and abuse of
process. With regard to the cause of action for libel per se,
plaintiff testified that he had a Ph.D. in electrical
engineering, worked with computer software programs, travels as
part of his job and comes into contact with similar
professionals. Plaintiff explained that the nature of his
employment requires background checks and security clearances.
He testified that defendant's letter to his employer, calling him
an abuser, accusing him of cruel and inhuman treatment, theft of
trade secrets, fraud and perjury, together with numerous online
postings, resulted in damage to his professional reputation as
well as public humiliation and embarrassment. Harm to emotional
well-being and professional reputation constitutes a basis for an
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award of compensatory damages (see Dobies v Brefka, 45 AD3d 999,
1001 [2007]). We find that Supreme Court's award to plaintiff of
$5,000 in compensatory damages "is fairly supported by the
evidence and does not deviate from what is reasonable
compensation" (id. at 1001 [$225,000 award for false accusation
of sexual abuse of the plaintiff's daughter]; compare Strader v
Ashley, 61 AD3d 1244, 1247-1248 [2009], lv dismissed 13 NY3d 756
[2009] [$26,800 award for false accusations of criminal conduct];
Allen v CH Energy Group, Inc., 58 AD3d 1102, 1104 [2009] [award
reduced to $50,000 for false accusations of improper conduct in
public]; Rossignol v Silvernail, 185 AD2d 497, 498 [1992], lv
denied 80 NY2d 760 [1992] [award reduced to $85,000 for
slanderous statements regarding purported acts of child abuse];
Parkin v Cornell Univ., 182 AD2d 850, 852 [1992], appeal
dismissed 80 NY2d 914 [1992] [award reduced to $10,000 for false
accusations of stealing employer's property]).

      Testimony presented with respect to the cause of action for
abuse of process demonstrated that defendant initiated multiple
actions and proceedings against plaintiff with the intent to
relitigate issues that had previously been determined, without
justification, and used the process in a perverted manner to
obtain a collateral objective (see Board of Educ. of Farmingdale
Union Free School Dist. v Farmingdale Classroom Teachers Assn.,
Local 1889, AFT AFL-CIO, 38 NY2d 397, 403 [1975]; Ettienne v
Hochman, 83 AD3d 888, 888 [2011]). In so doing, plaintiff and
his family were "subjected to a plethora of litigious practices"
that are best deemed "frivolous and grounded in malice" (Chew Wah
Bing v Sun Wei Assn., 191 AD2d 361, 362 [1993], appeal dismissed
82 NY2d 886 [1993]). Accordingly, Supreme Court's award of
$5,000 on the abuse of process cause of action should not be
disturbed (compare id. at 363 [$25,000 award]).

      We next turn to plaintiff's request for punitive damages
which "are not to compensate the injured party but rather to
punish the tortfeasor and to deter this wrongdoer and others
similarly situated from indulging in the same conduct in the
future" (Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489
[2007]). Such an award is "permitted when the defendant's
wrongdoing is not simply intentional but 'evince[s] a high degree
of moral turpitude and demonstrate[s] such wanton dishonesty as
                              -4-                519496

to imply a criminal indifference to civil obligations'" (id. at
489, quoting Walker v Sheldon, 10 NY2d 401, 405 [1961]; accord
Strader v Ashley, 61 AD3d at 1248). "[S]uch an award [must] bear
a reasonable relationship to [the] defendant['s] culpability"
(Parkin v Cornell Univ., 182 AD2d at 852). Here, defendant has
repeatedly harassed plaintiff and his family, attempted to
discredit him and damage his reputation, brought numerous suits
against plaintiff and his agents, employers and associates and
continues to attempt to relitigate issues long since determined.
As such, Supreme Court properly granted plaintiff $5,000 in
punitive damages (see Strader v Ashley, 61 AD3d at 1248 [awards
of $100,000, $5,000 and $12,500 for false accusations of criminal
conduct]; Dobies v Brefka, 45 AD3d at 1001 [$30,500 for false
accusation of sexual abuse of the plaintiff's daughter]; Heller v
Ingber, 134 AD2d 733, 735 [1987] [award reduced to $10,000 for
malicious prosecution]).

       Supreme Court did not abuse its discretion when it granted
a permanent injunction restraining defendant for five years from,
among other things, contacting plaintiff's past, present and
future employers and commencing any legal proceedings against
plaintiff, his family and employers without first obtaining
consent from Supreme Court. In order to be granted a permanent
injunction, a plaintiff must establish that he or she would
suffer "irreparable injury in the absence of an adequate legal
remedy" (Town of Liberty Volunteer Ambulance Corp. v Catskill
Regional Med. Ctr., 30 AD3d 739, 740 [2006]). In considering
such an application, the court must balance the equities between
the parties to determine whether the irreparable harm that a
plaintiff would suffer "substantially outweighs the injury that
the injunctive relief would cause to the defendant[]" (Parry v
Murphy, 79 AD3d 713, 715 [2010]). The requirement imposed by
Supreme Court, that defendant first seek approval of the court
before commencing any further actions or proceedings involving
plaintiff and others, is sufficiently narrow and balanced so as
to protect any legitimate claims that defendant may have, while,
at the same instance, protecting plaintiff from further vexatious
actions or proceedings by defendant.

      Counsel fees, which are "incidents of litigation, cannot be
awarded unless authorized by statute, court rule, or agreement
                              -5-                519496

between the parties" (Matter of Ernestine R., 61 AD3d 874, 876
[2009]; see Matter of A.G. Ship Maintenance Corp. v Lezak, 69
NY2d 1, 5 [1986]; Matter of Kaczor v Kaczor, 101 AD3d 1403, 1404
[2012]). "22 NYCRR 130-1.1, a court rule intended to limit
frivolous and harassing behavior, authorizes a court, in its
discretion, to award to any party or attorney in a civil action
reasonable [counsel] fees resulting from conduct found to be
'frivolous'" (Matter of Ernestine R., 61 AD3d at 876 [internal
citation omitted]). In several prior actions involving the
parties, defendant has asserted false material statements,
significantly delayed litigation, asserted positions without
basis in the law and continually attempted to relitigate issues
previously decided, all of which conduct could be considered
frivolous. We find ample support in the record for the amount
awarded for counsel fees.

      However, we are compelled to vacate other awards of
damages. When considering an application for a default judgment,
it is incumbent upon the court to examine the proof submitted
pursuant to CPLR 3215 (f) and determine whether "'a viable cause
of action exists'" (State of New York v Williams, 73 AD3d 1401,
1402 [2010], lv denied 15 NY3d 709 [2010], quoting Woodson v
Mendon Leasing Corp., 100 NY2d 62, 70-71 [2003]). We find that
plaintiff's causes of action for intentional infliction of
emotional distress and for violation of his right to privacy fail
as a matter of law.

      A cause of action for intentional infliction of emotional
distress should not be entertained "where the conduct complained
of falls well within the ambit of other traditional tort
liability" (Fischer v Maloney, 43 NY2d 553, 558 [1978]; accord
Sweeney v Prisoners' Legal Servs. of N.Y., 146 AD2d 1, 7 [1989],
appeal dismissed 74 NY2d 842 [1989]). Here, plaintiff's
complaint incorporated his libel and abuse of process allegations
as the basis for this cause of action. Because damages were
awarded on those causes of action, the damages awarded on the
cause of action for intentional infliction of emotional distress
must be vacated.

      A cause of action for violation of the right to privacy
under Civil Rights Law §§ 50 and 51 is "strictly limited to
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nonconsensual commercial appropriations of the name, portrait or
picture of a living person" (Finger v Omni Publs. Intl., 77 NY2d
138, 141 [1990]). Absent from the proof furnished by plaintiff
was any indication that defendant sought to use his name or
photograph "for advertising purposes or for the purposes of trade
only" (id. [internal quotation marks, emphasis and citation
omitted]). Therefore, Supreme Court should have determined that
this was not a viable cause of action. Consequently, there was
no basis for an award of damages on this cause of action.

      Next, defendant argues that Supreme Court erred in granting
an order of protection, and we agree. Supreme Court can properly
issue an order of protection in a matrimonial action under
Domestic Relations Law §§ 240, 252 (see Jennifer JJ. v Scott KK.,
117 AD3d 1158, 1159 [2014]); here, no matrimonial action was
pending. Although such an order is available under Family Ct Act
article 8, the pleadings do not contain allegations of conduct
that would constitute one of certain enumerated family offenses
(see Family Court Act § 812 [1]; Jennifer JJ. v Scott KK., 117
AD3d at 1159).

      Defendant's remaining contentions have been examined and
found to be lacking in merit.

     Peters, P.J., McCarthy, Egan Jr. and Rose, JJ., concur.
                              -7-                  519496

      ORDERED that the order and judgment entered May 21, 2014
and June 4, 2014 are modified, on the law, without costs, by
vacating the award of damages on the causes of action for
intentional infliction of emotional distress and violation of the
right to privacy, and, as so modified, affirmed.

      ORDERED that the order of protection entered June 4, 2014
is reversed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
