Opinion
August 2, 2000.
Delvecchio Recine, Garden City, for defendant.
Sanders Solomon, Huntington Station, for plaintiff.
DECISION ORDER
Defendant Shlomo Talmor moves to dismiss the complaint herein pursuant to CPLR 3211 (a)(7) on the grounds that it fails to state a cause of action as to each of four (4) separate causes of action therein alleged.
This action seeks money damages and alleges that the defendant secretely placed a voice activated recording device on the telephone in the parties' marital home, where both resided, in order to record telephone conversations of the plaintiff, his wife, and thereby obtain information which he could use to his benefit in the parties' divorce action, which is pending in this Part upder a separate index number (99-015415).
As noted, plaintiff alleges four (4) separate causes of action, to wit: (a) under the provisions of the Communications Act of 1934 ( 47 U.S.C. 605); (b) a private [non-governmental] cause of action under the New York State Penal Law concerning wiretapping (PL 250 et seq); (c) a private [non-governmental] cause of action under the federal wiretap act, created by the 1968 Omnibus Crime Control Act ( 18 U.S.C. 2510 et seq); and (d) intentional infliction of emotional distress under New York State law. All four (4) causes of action require dismissal, for the reasons hereinafter set forth.
Section 605 (a) of the Communications Act of 1934, which made it unlawfull to intercept and disseminate wire and radio communications, was amended by the Omnibus Crime Control Act of 1968, by removing the word "wire" from all but the first sentence of that section. That first sentence reads, in relevant part, that:
". . . . no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney, (2) to a person employed or authorized to forward such communication to its destination, (3) to proper accounting or distribution officers of the various communicating centers over which the communication may be passed, (4) to the master of a ship under whom he is serving, (5) in response to a subpeona issued by a court of competent jurisdiction, or (6) on demand of other lawful authority."
Such sentence has been held to refer to communications personnel, not private persons engaged in wiretapping activity ( see, International Cablevision, Inc. v. Noel, 859 F. Supp. 69 [USDC WDNY 1994] vacated on other grounds 75 F.3d 123, 131 n. 4 [2nd Circuit, 1996]; The National Basketball Association v. Sports Team Analysis and Tracking Systems, Inc., 939 F. Supp. 1071 [USDY SDNY 1996]; U.S. v. Norris, 88 F.3d 462 [7th Circuit 1996]). This interpretation is consistent with the nature of the six (6) categories of disclosure listed in the first sentence of the statute.
It has been held, further, that the intent of Congress when the 1968 legislation was enacted was to transfer regulation of wiretapping from the Communications Act to the Omnibus Crime Control Act ( 18 U.S.C. 2510 et seq) which specifically regulates wiretapping ( see, U.S. v. Norris, supra; Korman v. U.S., 486 F.2d 926 [7th Circuit 1973]; International Cablevision v. Sykes, 75 F.3d 123 [2nd Circuit 1996]) The rest of Section 605 refers to radio communications only and is, therefore, inapplicable. The Communications Act having no application to the defendant herein, the first cause of action must be, and hereby is dismissed.
The second cause of action seeks to have this Court establish new law and find a private cause of action under New York State Penal Law Section 250 et seq on the grounds that there exists, or should exist a common law right to privacy in New York. This Court declines to do so, for two (2) reasons. Firstly, while there does not appear to be a case in point coming out of the Second Department, the Appellate Divisions in both the First and Fourth Departments have already considered this issue and have declined to find that such a right may be inferred from Article 250 of the Penal Law, after applying the appropriate test for the finding of a private right of action under a penal statute as determined by the Court of Appeals in Burns Jackson v. Lindner ( 59 N.Y.2d 314; see, also, Greenfield v. Schultz, 251 A.D.2d 67; Fern v. International Business Machines, 204 A.D.2d 907). Secondly, any question as to whether the Court of Appeals is inclined to overrule its "old" decision in Roberson v. Rochester Folding Box Comany ( 171 N.Y. 538) holding that no common law right to privacy exists in New York, was plainly dispelled as recently as 1993 by its decision in Howell v. New York Post Company ( 81 N.Y.2d 115) wherein the Court observed:
"While the courts of other jurisdictions have adopted some or all of these torts, in this State the right to privacy is governed exclusively by sections 50 and 51 of the Civil Rights Law; we have no common law of privacy ( Stephano, 64 N.Y.2d 493, 497, n. 2; Flores v. Mosler Safe Co. 7 N.Y.2d 276, 280). Balancing the competing policy concerns underlying tort recovery for invasion of privacy is best left to the Legislature, which in fact has rejected proposed bills to expand New York law to cover all four categories of privacy protection (see, Arrington, 55 N.Y.2d at 440)."
There being no common law right to privacy in New York and no private right of action under the Penal Law, the second cause of action must likewise be, and hereby is dismissed.
The third cause of action seeks damages pursuant to 18 U.S.C. 2520 based upon defendant's violation of 18, U.S.C. 2511. The federal Courts interpreting 18 U.S.C. 2520, however, have held that Congress did not intend that the federal wiretapping laws should apply to situations where a party to a matrimonial action engages in wiretapping of the telephone in his or her own home in preparation for litigation (see, Anonymous v. Anonymous, 558 F.2d 677 [2nd Circuit 1977]; Janecka v. Franklin, 684 F. Supp. 24 [USDC SDNY 1987] aff'd 843 F.2d 110 [2nd Circuit 1988]) This has been so held even where the offended spouse resided in the same home (see, Lizza v. Lizza, 631 F. Supp. 529 [USDC EDNY 1986]; London v. London, 420 F. Supp. 944 [USDC SDNY 1976]; Simpson v. Simpson, 490 F.2d 803 [5th Circuit 1974]).
While various circuits around the country are split on the question of interspousal immunity as a rationale for this result, the cases in this circuit have distinguished between those cases where a defendant has wiretapped the telephone in his own home (which is the case here) and those cases where the defendant has invaded the home of another to accomplish the act of wiretapping. The Act has been found applicable to the latter situation, but not to the first. In as much as our 2nd circuit has held that the private right of recovery under 18 U.S.C. 2520 is not available against a person who taps his/her own home telephone in preparation for a matrimonial litigation, said third cause of action must also be, and hereby is dismissed.
The fourth cause of action alleged in the complaint herein seeks recovery for the said conduct, the wiretapping, on a theory that in so doing, defendant intentionally inflicted severe emotional distress upon the plaintiff. On a motion to dismiss, the allegations of the complaint are deemed to be true and the complaint is to be liberally construed in favor of plaintiff (see, Amfesco Industries, Inc. v. Greenblatt, 172 A.D.2d 261); however, bare legal conclusions are not sufficient nor entitled to such consideration (see, Mark Hampton, Inc. v. Bergreen, 173 A.D.2d 220). Aside from the defendant's argument that the plaintiff's distress/injury is alleged in conclusory terms only and have not, therefore, been adequately pleaded, the Court finds that there are two (2) additional and more serious reasons why this cause of action must also be dismissed.
First of all, there are strong public policy considerations which mitigate against allowing the maintenance of a tort action between a husband and wife embroiled in a matrimonial action (see, Vasquez v. Vasquez, 175 Misc.2d 847; Hickok v. Hickok, 150 Misc.2d 123). The Court of Appeals has articulated in Weicker v. Weicker ( 22 N.Y.2d 8) that:
"Assuming that New York law now permits recovery for the intentional infliction of mental distress without proof of the breach of any duty other than the duty to refrain from inflicting it. . . . strong policy considerations militate against judicially applying these recent developments in this area of the law to the factual context of a dispute arising out of matrimonial differences. To sustain the claim for damages would result in a revival of evils not unlike those which prompted the Legislature in 1935 to outlaw actions for alienation of affections and criminal conversation (L 1935, ch 263; Civil Rights Law Sec 80-a, formerly Civ. Prac. Act Sec 61-b)."
(See, also, Baron v. Jeffer, 98 A.D.2d 810).
The Court also finds that the allegations of the complaint, accepted as true, are not sufficient to make out a cause of action for infliction of emotional distress. In order to establish such a claim, plaintiff must prove four (4) elements, to wit: (1) that defendant engaged in extreme and outrageous conduct; (2) that defendant did so intentionally; (3) that defendant's conduct caused the distress; and (4) that plaintiff suffered severe emotional distress (see, Christenson v. Gutman, 249 A.D.2d 805). The conduct in question must "be regarded as atrocious and utterly intolerable in a civilized society" ( Klinge v. Ithaca College, 235 A.D.2d 724). The conduct must be "so severe that no reasonable man could be expected to endure it" (Restatement of Torts, Second, Sec. 46, comment j; also, Richard L. v. Armon, 144 A.D.2d 1). Whether the alleged conduct is sufficiently outrageous to satisfy this element is, in the first instance, a decision for the Court (see, Rocco v. Town of Smithtown, 229 A.D.2d 1034).
The Court has reviewed New York Pattern Jury Instructions 3:6 (cumulative supplement 2000) and the numerous cases therein cited concerning the types of conduct which have and/or have not been found to have met this standard. A review of such cases is instructive as to the kind of conduct required to support a claim for intentional infliction of emotional distress under New York law. For example, the following have been held not sufficiently outrageous to sustain such a cause of action: (a) defendant/doctor obtained hospital documents showing that plaintiff underwent a vasectomy and then used the documents in a matrimonial action to support his contention that his wife was having an affair with the plaintiff ( Andrews v. Bruk, 220 A.D.2d 376); (b) an attorney's fraudulent concealment of a loan that the attorney and client obtained by means of a forged power of attorney used to place a mortgage on plaintiff's property ( Vasilopoulos on behalf of Vasilopoulos v. Romano, 228 A.D.2d 669); (c) falsely accusing someone of being antisemitic and biased in her treatment of Jews ( Herlihy v. Metropolitan Museum of Art ( 214 A.D.2d 250); (d) destroying a student's exam motivated by personal ammus toward the student ( Silverman v. New York Univ. School of Law, 193 A.D.2d 411; (e) a statement by counsel to an adverse party at trial that the latter would suffer heavily because of his lawyer's failure to settle ( Nestlerode v. Federal Ins. Co, 66 A.D.2d 504); (f) communicating to plaintiffs that they would be prevented from selling their apartment at a profit and that their life in the building would be made miserable ( Smukler v. 12 Lofts Realty, Inc. 156 A.D.2d 161; (g) intentionally relaying false information to a hospital that the plaintiff, a nurse, had euthanized a patient ( La Duke v. Lyons, 250 A.D.2d 969); (h) permitting crude and offensive statements of a sexually derisive nature to occur in the workplace ( Shea v. Cornell Univ., 192 A.D.2d 857); and (h) directing religious and ethnic slum, including "Hebe" and "Kike" against an employee, held to be deplorable and reprehensible, but still not stating a cause of action for intentional infliction of mental distress ( Leibowitz v. Bank Leumi Trust Co., 152 A.D.2d 169).
By way of contrast, the following activities have been held to be sufficiently outrageous to support a claim of intentional infliction of emotional distress or, at least, raise a question of fact for a jury on such issue: (a) defendant yelled and gestured obscenely at plaintiff, followed her home, refused to leave the premises, followed her children and family members around and told plaintiff he knew where the children went to school and when they get out of school ( Bunker v. Testa, 234 A.D.2d 1004); (b) defendant, a psychiatrist, persuaded his patient to have a sexual relationship with him for therapeutic benefit and he made numerous harassing telephone calls to her after she terminated the relationship ( Sanchez v. Orozco, 178 A.D.2d 391) (c) threatening bodily harm to seller and purchaser if a house were sold to a "colored" purchaser ( Ruiz v. Bertolotti, 37 Misc.2d 1067, aff'd 20 A.D.2d 628); (d) destroying windows of a house where a woman and children were staying, thereby exposing them to severe cold, and threatening her life by displaying a bullet ( Weisman v. Weisman, 108 A.D.2d 853); (e) making false charges in a proceeding against a high school principal and spreading false rumors that the principal had also been involved in an affair; had used student funds for his own benefit; and utilized associates to work on his house during school hours, all in order to coerce his resignation ( Sullivan v. Board of Education, 131 A.D.2d 836); (f) making hundreds of hang-up telephone calls ( Doe v. Esposito, 114 A.D.2d 992); and (g) an intentional misdiagnosis of HIV ( Harvey v. Cramer, 235 A.D.2d 31).
Comparing the allegations in the case at bar (that defendant tapped his own home telephone to intercept his wife's calls, for his use or advantage in their matrimonial litigation) with the above lines of cases, this Court concludes that the allegations in the fourth cause of action are insufficient, as a matter of law, to sustain a cause of action for intentional infliction of emotional distress and, accordingly, the said fourth cause of action must be, and hereby is dismissed.
This matter having been disposed of, the parties are reminded that their divorce action (under index No. 99-015415) is currently scheduled for trial before this Court on September 18, 2000 at 9:30 am and, in view of the dismissal herein, the parties should be ready to proceed to trial on that date.