Opinion
20922/06.
Decided May 14, 2008.
Motion by plaintiff Leah Ruth Scher for leave to reargue the prior motion by defendants Mark Scher and David Scher for summary judgment is denied.
In this action, it is alleged by plaintiff, the widow of Harold Scher, that, following his death on February 11, 2006, defendants converted various articles of personal property from decedent's apartment and transferred money from his bank accounts to themselves. Plaintiff further alleges (in a second cause of action sounding in intentional and negligent infliction of emotional distress) that, after removing Harold Scher to the home of David Scher during a period of plaintiff's hospitalization, defendants refused to permit any communication between plaintiff and her husband or to provide her with any information regarding his medical condition.
In May 2007, defendants moved for partial summary judgment with respect to the second cause of action. By order dated August 10, 2007, the motion was granted without opposition. Subsequently, plaintiff moved for an order "opening and setting aside the judgment for partial summary judgment granted on default." In her motion, plaintiff explained that her attorney's failure to appear at the calendar call was "accidental" because the attorney mistakenly believed the scheduled court date had been adjourned. A transcript of oral argument on December 7, 2007 indicates the court's willingness to accept plaintiff's reason for the failure to appear at the call of the motion calendar. Nevertheless, the motion was denied "as plaintiff ha[d] failed to establish the existence of a meritorious claim."
Plaintiff did not appear at the motion calender call. Hence, the motion was actually granted on default.
In seeking reargument, plaintiff asserts that her affidavit and the affirmation of her attorney which were submitted in opposition to defendants' original motion for partial summary judgment were "more than sufficient to establish the cause of action for intentional infliction of emotional distress." In her affidavit, plaintiff explained how, after returning home from months of rehabilitation from a stroke, many of her "most treasured possessions" were gone and she incorporates by reference her attorney's affirmation which provides more details of defendants' acts and omissions. In his affirmation, the attorney recites defendants' alleged acts of intentional callousness toward plaintiff, including their refusal to allow plaintiff to see her husband or to be involved in his medical care and their failure to notify her of his death and place of burial.
Plaintiff has not made any mention of her claim for negligent infliction of emotional distress and, therefore, the adequacy of that claim is not being addressed.
In opposition to the instant motion, defendants characterize plaintiff's request for relief as "essentially an appeal of the court's denial of a previous request for reargument." Defendants fault plaintiff for failing to show how this court misapprehended any facts or law in considering the prior motion. With respect to the merit (or lack of merit) of plaintiff's second cause of action, defendants argue that a claim for intentional infliction of emotional distress may not be based on an allegation that the defendant interfered with the plaintiff's relationship with a family member.
While defendants characterize plaintiff's prior motion as "essentially a motion to reargue," the motion expressly indicates that it was for the purpose of "opening and setting aside the judgment for partial summary judgment" and, in fact, plaintiff's counsel went to great lengths to explain the reasons why he did not appear at the calendar call on August 10, 2007. Thus, the instant motion is, in point of fact, plaintiff's first and only motion for reargument.
The purpose of a motion for reargument is to afford a party an opportunity to demonstrate that the court overlooked or misapprehended the law or facts pertinent to the original motion ( see CPLR 2221 [d] [2]; Andrea v E.I. DuPont de Nemourst Co., 289 AD2d 1039, 1040-1041). "Its purpose is not to serve as a vehicle to permit the unsuccessful party to reargue once again the very questions previously decided" ( Foley v Roche, 68 AD2d 558, 567). In seeking reargument, plaintiff reasserts her contention that defendants have acted in such a manner so as "to inflict as much harm, pain and emotional distress upon the plaintiff as they could." This contention was expressly rejected by the court. Even accepting the truth of plaintiff's allegations regarding what defendants did or failed to do, the underlying conduct was not so shocking and outrageous that it exceeded all reasonable bounds of decency. This threshold of outrageousness is so difficult to reach that, of the intentional infliction of emotional distress claims considered by the Court of Appeals, "every one has failed because the alleged conduct was not sufficiently outrageous" ( Howell v New York Post Co., 81 NY2d 115, 122 [citations omitted]). Where claims of intentional infliction of emotional distress have been upheld by the various Appellate Divisions, they were supported by allegations detailing a longstanding campaign of deliberate, systematic and malicious treatment of the plaintiff, as opposed to the seven months of "stonewalling" allegedly present in this case ( see, e.g., Shannon v MTA Metro-North R.R., 269 AD2d 218; Warner v Drucker, 266 AD2d 2). Here, defendants' failure to advise plaintiff of decedent's funeral arrangements is not so extreme in degree as to go beyond all possible bounds of decency ( see Plaza v Estate of Wisser, 211 AD2d 111) and defendants' alleged refusal to allow communication between plaintiff and her husband was nothing more than alienation of affections, which is expressly prohibited under Civil Rights Law § 80-a ( see Sahid v Chambers, 237 AD2d 175). Consequently, inasmuch as plaintiff has failed to show that the court overlooked or misapprehended the law or facts and has attempted to resurrect all of her original arguments, she has failed to set forth a valid basis for reargument.
The foregoing constitutes the decision and order of this court.