         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
182
CA 10-00691
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ.


FLORINE ZANE, LISA ZANE-MORREALE,
SAVON KHIEMDAVANH AND SOUMBAY KHIEMDAVANH,
MINORS, BY THEIR GUARDIANS FLORINE ZANE AND
LISA ZANE-MORREALE, PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

MARK S. CORBETT, DEFENDANT,
AND D.A. BRIGHAM-MANLEY, DEFENDANT-RESPONDENT.


BOSMAN LAW FIRM, LLC, ROME (A.J. BOSMAN OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

MITCHELL GORIS & STOKES, LLC, CAZENOVIA (MARK D. GORIS OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Oneida County (Samuel D. Hester, J.), entered October 27, 2009.
The order and judgment granted the motion of defendant D.A.
Brigham-Manley for a directed verdict of no cause of action.

     It is hereby ORDERED that the order and judgment so appealed from
is modified on the law by denying that part of the pretrial cross
motion of defendant D.A. Brigham-Manley for summary judgment
dismissing the fifth cause of action against her, denying that part of
her motion at the close of proof at trial for judgment as a matter of
law dismissing the sixth cause of action against her, reinstating the
fifth and sixth causes of action against that defendant, granting
those parts of plaintiffs’ cross motion seeking leave to supplement
the second amended complaint only with respect to the fifth and sixth
causes of action, upon condition that plaintiffs shall serve the
proposed pleading within 20 days of service of a copy of the order of
this Court with notice of entry, and as modified the order and
judgment is affirmed without costs, and a new trial is granted on the
fifth and sixth causes of action against that defendant.

     Memorandum: Plaintiffs commenced this action seeking, inter
alia, damages for emotional distress that they sustained as a result
of the actions of defendants. The facts of this case, developed in a
week-long trial during which 13 witnesses testified for plaintiffs,
are disturbing. The evidence established that plaintiff Florine Zane
has lived in her house in Utica for 43 years. D.A. Brigham-Manley
(defendant) moved into the house next door to Zane in approximately
1993 with her then-husband. The infant plaintiffs, who were 6 and 11
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                                                         CA 10-00691

years old at the time most of the incidents took place, resided with
Zane, their grandmother. Plaintiff Lisa Zane-Morreale is Zane’s
daughter and shares joint custody of the infant plaintiffs, her
nephews, with Zane. Although Zane-Morreale did not live with Zane and
the children, her testimony established that she was often present at
Zane’s house. The conflicts between plaintiffs and defendant began 10
years after defendant moved to that location, when defendant’s husband
moved out of defendant’s house and defendant Mark S. Corbett,
defendant’s boyfriend, moved in. Over approximately the next 1½
years, Corbett began an unrelenting campaign of harassment against
plaintiffs and their visitors, including swearing and making obscene
gestures at them, blowing an air horn, videotaping as well as taking
pictures of them, and shining a spotlight and red laser on them. For
example, Zane testified at trial concerning incidents in which Corbett
called her a “f*** asshole” and a “f*** fat ass bitch.” She further
testified that, any time someone came to her house, Corbett would come
outside and would swear at the visitor.

     Defendants’ most disturbing conduct was directed at the infant
plaintiffs. Zane testified that Corbett called the infant plaintiffs
“crackheads” and “f*** little bastards” and made an obscene hand
gesture toward them. The younger infant plaintiff testified at trial
that both Corbett and defendant swore at him and his friends. He also
testified that Corbett would stand outside and videotape him while he
played with his friends. Although the testimony established that
Corbett was the major offender of the outrageous conduct, the
testimony further established that defendant was also a participant
and in fact encouraged Corbett to engage in that conduct. For
example, when Corbett was swearing at a member of plaintiffs’ family,
Corbett asked defendant, “Do you want me to beat his f*** ass?,” to
which she replied, “[Y]es, babe, beat his f*** ass.” Corbett and
defendant directed similar conduct toward an attorney on two occasions
when the attorney visited Zane.

     There are a multitude of similar examples of the behavior of
defendant and Corbett documented throughout the record. There can be
no dispute that such behavior is appalling and would be abhorrent to
anyone living next door to them. Although Zane often telephoned the
police regarding such behavior, the police would tell her that it was
a “civil matter.” In any event, those telephone calls had no effect
on Corbett’s behavior. Zane testified that, after the police came
when she complained about Corbett shining a red light on her, he
repeated that behavior after the police departed.

     At the conclusion of the trial, Supreme Court granted defendant’s
motion for judgment as a matter of law against her, and directed that
a judgment of no cause of action be entered in her favor. We agree
with plaintiffs that the court erred in granting that part of
defendant’s motion with respect to the sixth cause of action against
her, for negligence, and we therefore modify the order and judgment
accordingly. Plaintiffs alleged in that cause of action, inter alia,
that defendant was negligent in allowing the willful and malicious
conduct of Corbett to occur at her residence. “A property owner, or
one in control or possession of real property, has the duty to control
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                                                         CA 10-00691

the conduct of those whom he [or she] permits to enter upon it . .
.[,] provided that the owner knows that he [or she] can and has the
opportunity to control the third-parties’ conduct and is reasonably
aware of the necessity for such control” (Mangione v Dimino, 39 AD2d
128, 129; see D’Amico v Christie, 71 NY2d 76, 85). Plaintiffs
presented evidence establishing not only that defendant was aware of
Corbett’s conduct but that, as previously noted, she would join in and
encourage his behavior.

      Defendant contends that she did not have the opportunity to
control Corbett’s behavior because “ ‘[a] reasonable opportunity or
effective means to control a third person does not arise from the mere
power to evict’ that person as tenant” (Torre v Burke Constr., 238
AD2d 941, 942). The evidence at trial, however, did not establish
that defendant was Corbett’s landlord but, rather, it suggested that
Corbett was simply defendant’s live-in boyfriend and thus was a guest
on her property. Defendant further contends that she had no reason to
be aware of the need to control Corbett because she did not know of
any conduct by Corbett that endangered plaintiffs. The record belies
that contention. Plaintiffs presented evidence that, inter alia,
Corbett would shine a spotlight in Zane’s eyes as she drove her
vehicle in and out of her driveway, which created an unreasonable risk
of harm to her. Based on the testimony presented by plaintiffs, it
cannot be said that “it would . . . be utterly irrational for a jury
to reach [a verdict in favor of plaintiffs]” on the negligence cause
of action against defendant (Cohen v Hallmark Cards, 45 NY2d 493,
499).

     We disagree with the dissent that plaintiffs cannot maintain the
negligence cause of action against defendant because the harm to
plaintiffs did not occur on defendant’s property. Under the
circumstances of this case, we conclude that such a narrow definition
of a landowner’s duty is untenable. Indeed, the facts in DeRyss v New
York Cent. R.R. Co. (275 NY 85) support our position. In that case,
defendant Joseph M. Hard, an employee of the defendant railroad, was
working on a signal bridge owned and controlled by the railroad (id.
at 89-90). While working, Hard permitted a non-employee of the
railroad to climb up a ladder to the signal bridge and to use a rifle
to shoot at ducks out in the river (id. at 90). In attempting to
shoot the ducks, the non-employee shot and killed the plaintiff’s
decedent, who was sitting in a blind on property not owned by the
railroad (id.). The case proceeded to trial, and the court, inter
alia, found that Hard was liable as a matter of law (id. at 91). On
appeal, the Court of Appeals affirmed that finding of liability,
concluding that, “[i]f Hard, having control of the premises and the
situation, not only permitted, but invited [the non-employee] to shoot
at ducks in the river under circumstances and conditions [that] would
indicate to a reasonably prudent [person] that it was dangerous to
others so to do, he would be liable . . . for the consequences”
(id. at 94). The Court determined that the issue was “whether
reasonable care had been exercised” (id.). Thus, in DeRyss, the Court
upheld a finding of liability against a person in possession of real
property, despite the fact that the injury did not occur on that
property. We thus conclude that it is of no moment that the injury to
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                                                         CA 10-00691

plaintiffs occurred on property owned by Zane, rather than on
defendant’s property.

     In our view, the Court of Appeals did not intend to depart from
its ruling in DeRyss in its subsequent decision in D’Amico v Christie,
relied upon by the dissent. In D’Amico, the Court concluded that
“[l]andowners in general have a duty to act in a reasonable manner to
prevent harm to those on their property . . .[, including] a duty to
control the conduct of third persons on their premises when they have
the opportunity to control such persons and are reasonably aware of
the need for such control” (D’Amico, 71 NY2d at 85). The Court
further concluded, however, that “the common-law doctrine relating to
landowners’ liability for dangerous conditions on their [property] . .
. [was] wholly inapposite to the facts of [that] case” (id. at 87), in
which an intoxicated employee left a company picnic and was in a motor
vehicle accident several miles away (id. at 81). Thus, that case did
not involve injury to a person on property adjacent to property owned
by the defendant, as in DeRyss (275 NY at 90). In addition, we note
that the Court cited to DeRyss in its decision in D’Amico, thereby
upholding the viability of that case (see D’Amico, 71 NY2d at 85).
Indeed, more recent cases continue to rely on DeRyss in imposing
liability on owners of property, even where the injuries occurred on
adjacent property (see Murphy v Turian House, 232 AD2d 535), and we
believe the same result should occur here.

     Plaintiffs’ appeal from the order and judgment brings up for
review the pretrial order granting in part defendant’s cross motion
for summary judgment dismissing the second amended complaint against
her and denying plaintiffs’ cross motion for leave to “supplement” the
second amended complaint (see CPLR 5501 [a] [1]; Burke v Crosson, 85
NY2d 10, 15-16). We agree with plaintiffs that the court erred in
granting that part of defendant’s cross motion with respect to the
fifth cause of action against her, for intentional infliction of
emotional distress (IIED), and we therefore further modify the order
and judgment accordingly.

     “The tort [of IIED] has four elements: (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).
Defendant contends that she was entitled to summary judgment
dismissing the IIED cause of action against her because she
established that the first and fourth elements did not apply, and
plaintiffs failed to raise an issue of fact with respect to those
elements. We reject that contention. With respect to the first
element, plaintiffs alleged in their second amended complaint that,
“[o]n a constant and even daily basis, the [d]efendants, without any
just cause or provocation, [would] shout obscenities, vulgarities and
use obscene nonverbal gestures directed at [plaintiffs],” videotape
plaintiffs, and harass guests visiting plaintiffs. In their bill of
particulars, plaintiffs gave specific examples of defendant’s conduct
directed at plaintiffs. In support of her cross motion, defendant
submitted the deposition testimony of Zane, which in fact supported
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                                                          CA 10-00691

the allegation of plaintiffs that defendant’s conduct, which was
repeated and often directed at the infant plaintiffs, was extreme and
outrageous (cf. Poliah v Westchester County Country Club, Inc., 14
AD3d 601; Harville v Lowville Cent. School Dist., 245 AD2d 1106, lv
denied 92 NY2d 808).

     With respect to the fourth element of IIED, i.e., severe
emotional distress, plaintiffs alleged that they “suffered fear,
stress, pain, emotional upset, [and] great mental anguish.” Again, in
support of her cross motion, defendant submitted the deposition
testimony of Zane that she consulted with her physician regarding her
anxiety as a result of defendant’s behavior and thus submitted
evidence supporting the allegations of plaintiffs. Based on that
testimony and the allegations in the pleadings, we conclude that
defendant failed to meet her initial burden of establishing her
entitlement to judgment as a matter of law dismissing the IIED cause
of action against her with respect to Zane (see generally Cavallaro v
Pozzi, 28 AD3d 1075, 1079). Even assuming, arguendo, that defendant
met her initial burden on those parts of the cross motion concerning
the IIED cause of action against her with respect to Zane-Morreale and
the infant plaintiffs, we further conclude that plaintiffs raised a
triable issue of fact regarding the fourth element of IIED with
respect to those plaintiffs. In opposition to the cross motion,
plaintiffs submitted the deposition testimony of Zane-Morreale, who
testified that she suffered from sleeplessness and headaches as a
result of defendants’ conduct. She also testified that the younger
infant plaintiff was treated by a medical provider because of
defendants’ conduct. We therefore conclude that “there exist[ed a
special] likelihood of genuine and serious mental distress, arising
from the special circumstances” (Garcia v Lawrence Hosp., 5 AD3d 227,
228 [internal quotation marks omitted]). As we noted above, the
harassment and outrageous conduct perpetrated by defendants against
plaintiffs was unrelenting and lasted over 1½ years, and there is at a
minimum an issue of fact whether severe emotional distress would
result from that conduct.

     Finally, plaintiffs, as limited by their brief on appeal, contend
that the court erred in denying those parts of their cross motion
seeking leave to supplement the second amended complaint only with
respect to the fifth and sixth causes of action to include allegations
of wrongdoing by defendants after the filing of the second amended
complaint. We agree with plaintiffs, and we therefore further modify
the order and judgment accordingly. It is well settled that, “[i]n
the absence of prejudice or surprise, leave to [supplement] a pleading
should be freely granted” (Boxhorn v Alliance Imaging, Inc., 74 AD3d
1735, 1735; see Bryndle v Safety-Kleen Sys., Inc., 66 AD3d 1396).
Here, defendant cannot claim surprise or prejudice by the addition of
such factual allegations, which did not form the basis for any new
causes of action.

     All concur except SCUDDER, P.J., and CARNI, J., who dissent in part
and vote to affirm in the following Memorandum: We respectfully
dissent in part. We agree with the majority that the conduct of D.A.
Brigham-Manley (defendant) and defendant Mark S. Corbett was
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                                                         CA 10-00691

reprehensible and has no place in a civil society. We conclude,
however, that Supreme Court properly granted those parts of
defendant’s cross motion for summary judgment dismissing the fifth
cause of action against her, for intentional infliction of emotional
distress (IIED) with respect to plaintiff Lisa Zane-Morreale and the
infant plaintiffs and properly granted that part of defendant’s motion
for judgment as a matter of law on the sixth cause of action against
her, for negligence.

     With respect to the IIED cause of action, we agree with the
majority that the conduct attributable to defendant and Corbett, her
live-in boyfriend, is particularly egregious and thus sufficient to
support the “extreme and outrageous conduct” element of that cause of
action (Mitchell v Giambruno, 35 AD3d 1040, 1041; see Cavallaro v
Pozzi, 28 AD3d 1075, 1078-1079; Stram v Farrell, 223 AD2d 260, 265).
We conclude, however, that defendant was entitled to summary judgment
dismissing that cause of action insofar as it was asserted by Zane-
Morreale and the infant plaintiffs. It is well established that
plaintiffs pursuing a cause of action for IIED must establish not only
that the conduct at issue was extreme and outrageous but also that
they suffered “severe emotional distress” (Howell v New York Post Co.,
81 NY2d 115, 121). In support of her cross motion, defendant
submitted plaintiffs’ answer to the supplemental bill of particulars
in which plaintiffs admitted that “[t]here [were] no doctors” that
“treated, consulted with and/or examined” plaintiffs with respect to
their alleged emotional distress. Defendant also submitted, however,
the deposition testimony of plaintiff Florine Zane, in which she
stated that she sought treatment from her primary care physician for
symptoms attributable to defendants’ conduct. Zane testified that she
suffered from anxiety and sleeplessness and that she was prescribed
medication to address those symptoms. We thus agree with the majority
that defendant failed to establish her entitlement to judgment as a
matter of law dismissing the IIED cause of action against her insofar
as it was asserted by Zane (see generally Cavallaro, 28 AD3d at 1078-
1079).

     We conclude, however, that defendant met her initial burden of
establishing that Zane-Morreale did not suffer from severe emotional
distress. Even though plaintiffs, in opposition to defendant’s cross
motion, submitted evidence that Zane-Morreale suffered from headaches
and sleeplessness as a result of defendants’ conduct, plaintiffs’
attorney conceded at oral argument of this appeal that Zane-Morreale
did not have a sustainable cause of action for IIED. We therefore
would affirm that part of the order and judgment granting defendant’s
cross motion with respect to the IIED cause of action against her
insofar as it was asserted by Zane-Morreale.

     With respect to the infant plaintiffs, plaintiffs submitted
evidence in opposition to the cross motion that Zane-Morreale
“believe[d]” the younger infant plaintiff may have been treated by a
medical professional because he had “been frightened” by defendants’
conduct. Plaintiffs failed to address any treatment sought by the
older infant plaintiff or any specific symptoms of distress exhibited
by the infant plaintiffs. While there are occasions when severe
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                                                         CA 10-00691

emotional distress may be deemed genuine without the need for medical
evidence (see Garcia v Lawrence Hosp., 5 AD3d 227), we do not believe
that this is such a case. The plaintiff in Garcia inadvertently
smothered her one-day-old child who had been brought to her to
breastfeed shortly after employees of the defendant hospital had
medically sedated the plaintiff (id.). Under those circumstances, the
emotional distress suffered by the plaintiff could be presumed. The
presumption of emotional distress that arises from a mother
inadvertently killing her own child cannot be equated to the alleged
emotional distress arising from a neighbor’s campaign of harassment.
The lack of any evidence of medical or psychological treatment renders
the claims of the infant plaintiffs for severe emotional distress
conclusory and speculative (see Roche v Claverack Coop. Ins. Co., 59
AD3d 914, 918; Christenson v Gutman, 249 AD2d 805, 808-809; Erani v
Flax, 193 AD2d 777). We therefore would affirm that part of the order
and judgment granting defendant’s cross motion with respect to the
IIED cause of action against her insofar as it was asserted by the
infant plaintiffs.

     With respect to the negligence cause of action, we conclude that
the court properly granted that part of defendant’s motion for
judgment as a matter of law dismissing that cause of action against
her. In their second amended complaint plaintiffs alleged that
defendant was negligent in allowing or failing to control the conduct
of Corbett while he was on defendant’s premises. In support of her
motion, defendant contended that she owed no duty to plaintiffs to
control the conduct of Corbett. We agree.

     It is well established that “[a] defendant generally has no duty
to control the conduct of third persons so as to prevent them from
harming others, even where as a practical matter [a] defendant can
exercise such control” (D’Amico v Christie, 71 NY2d 76, 88; see
Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232-233; Purdy v Public
Adm’r of County of Westchester, 72 NY2d 1, 8, rearg denied 72 NY2d
953). “This judicial resistance to the expansion of duty grows out of
practical concerns both about potentially limitless liability and
about the unfairness of imposing liability for the acts of another. A
duty may arise, however, where there is a relationship either between
defendant and a third-person tortfeasor that encompasses defendant’s
actual control of the third person’s actions[] or between defendant
and plaintiff that requires defendant to protect plaintiff from the
conduct of others” (Hamilton, 96 NY2d at 233). No such relationship
exists in this case.

     Landowners also have a duty to protect those on their property
“from foreseeable harm caused by the criminal conduct of others while
they are on the premises . . . However, [that] duty does not extend
beyond that limited class of plaintiffs to members of the community at
large” (id.). As the Court of Appeals has written, “[l]andowners in
general have a duty to act in a reasonable manner to prevent harm to
those on their property . . .[, including] a duty to control the
conduct of third persons on their premises when they have the
opportunity to control such persons and are reasonably aware of the
need for such control” (D’Amico, 71 NY2d at 85 [emphasis added]; see
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                                                         CA 10-00691

generally Di Ponzio v Riordan, 224 AD2d 139, 142, affd 89 NY2d 578;
Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519). “[L]iability may be
imposed only for injuries that occurred on defendant’s property[] or
in an area under defendant’s control . . . [because the duty emanates]
from the obligation of a landowner to keep its premises free of known
dangerous conditions” (D’Amico, 71 NY2d at 85 [emphasis added]; see
Struebel v Fladd, 75 AD3d 1164, 1165). Here, there is no dispute that
plaintiffs were not injured on defendant’s property or in an area
under defendant’s control.

     The majority relies on DeRyss v New York Cent. R.R. Co. (275 NY
85) to support its conclusion that defendant owed plaintiffs a duty to
control the conduct of Corbett, despite the fact that plaintiffs were
not on defendant’s property at the time in question. Inasmuch as
DeRyss was decided over 50 years before D’Amico, we view D’Amico to be
the controlling precedent. D’Amico explicitly limits the liability of
landowners to injuries that occur on their premises.

     “Despite often sympathetic facts in a particular case before
them, courts must be mindful of the precedential, and consequential,
future effects of their rulings[] and ‘limit the legal consequences of
wrongs to a controllable degree’ ” (Lauer v City of New York, 95 NY2d
95, 100). We thus conclude that defendant owed no duty to plaintiffs
to control Corbett’s conduct, although it was undisputably
reprehensible and egregious. The facts of this case establish a cause
of action against defendant for nuisance, not for negligence.

     On the remaining issue, we agree with the majority that the court
erred in denying those parts of plaintiffs’ cross motion seeking leave
to supplement the second amended complaint only with respect to the
fifth and sixth causes of action.




Entered:   March 25, 2011                       Patricia L. Morgan
                                                Clerk of the Court
