First published: Sep 2007
Medows vs. Stern
Although this was not a final decision on the merits, the court was loathe to dismiss the complaint without a further review of the facts. So, the decision is a victory for the plaintiff and may be useful in achieving a settlement between the litigants rather than lead to a prolonged and costly exercise in discovery, further motion practice, and, worst case, a trial.
In Medows vs. Stern, a motion to dismiss a complaint alleging intentional infliction of emotional distress and breach of contract was denied. The court concluded that it needed additional factual information before it could determine the merits of the complaint.
This was a dispute between the residents of two co-op apartments. The plaintiffs resided in the apartment directly above the defendant. They alleged that for over the past 18 months, the defendant, in a continuous course of conduct solely intended to harass and intimidate them, had used a baseball bat and/or broomstick to bang on the ceiling of his apartment directly under their bedroom and living room at all hours of the day and night for no purpose but to awake, annoy, frighten, intimidate and harass them and their three-month-old son. They alleged that, as a result, they had suffered sleep deprivation, bodily pain and mental anguish. The complaint asserted two causes of action. The first was for intentional infliction of emotional distress. The second was for breach of contract in violating the co-op’s bylaws regarding the proscription against making excessive noise. The defendant moved to dismiss the complaint for failure to state a cause of action.
The court noted that, in the first cause of action, in order to recover on the tort of intentional infliction of emotional distress, a party must establish that the other party’s conduct was so extreme and outrageous that it went beyond all possible bounds of decency and could be regarded as atrocious and utterly intolerable. Courts are reluctant to allow recovery under this claim unless there was a deliberate, malicious, and systematic campaign of harassment or intimidation. Since the complaint alleged just such a campaign of harassment by the defendant causing emotional distress to the plaintiffs, the court said that it adequately stated a cause of action.
As to the second cause, the defendant argued that the plaintiffs’ claim for breach of contract must fail because it was not based on any agreement between the parties but, rather, on an agreement between the defendant and the non-party co-op. However, the court observed that some courts had suggested that a tenant may be a third-party beneficiary entitled to enforce certain lease obligations that another tenant has assumed. Since neither party had cited any authority that expressly addressed the issue and since neither party had adequately addressed the issue, the court was persuaded that dismissal of the claim at this time would be inappropriate. Accordingly, the defendant’s motion to dismiss was denied.
