The opinion of the court was delivered by: MISHLER
Memorandum of Decision and Order
Plaintiffs charge defendants with false imprisonment, abduction, malicious and intentional infliction of mental suffering, prima facie tort, and conspiracy in abducting the infant plaintiff to Yugoslavia. The court held an inquest on the default of defendants in answering.
Defendants are relatives who shared a home in Whitestone, Queens, New York, and operated a family jewelry business in Manhattan. Fabian S. Kajtazi is the husband of plaintiff Olyvia Ann Kajtazi and the father of infant plaintiff Biter S. Kajtazi. Defendant Joseph Kajtazi is Fabian's stepfather; and defendant Adolph, also known as "Eddie" Kajtazi is the older brother of Fabian. The family home also included "Gina" or Mrs. Joseph Kajtazi, her daughter Elizabeth Kajtazi, who is about nineteen years of age, and twin sons about fourteen years old. Until the latter part of June 1977, plaintiffs Olyvia and Biter lived in this household which was operated "old country" style, i. e., having meals in common, with Joseph performing the alleged role of patriarch in the family.
On June 28, 1977, Olyvia separated from her husband, defendant Fabian, and left the home in Whitestone, Queens, New York, with Biter. On July 4, 1977, with Biter, she moved into her parents' home in Newport Beach, Orange County, California. On September 2, 1977, Olyvia commenced an action for divorce in the Superior Court, Orange County, California. Fabian was served with process and notice of hearing on September 20 of her application for an award of custody of Biter. Fabian defaulted in answering and appearing. On September 26, 1977, the court issued an order awarding custody to her during the pendency of the action.
Soon after the award of custody to Olyvia, Fabian, Joseph and Adolph told Olyvia and her mother, Mrs. Richard Stewart, by telephone, that they would take custody of Biter in defiance of the court order.
On November 2 and 3, 1977, defendant Fabian was in Newport Beach, California, and met with Olyvia, her parents, and their minister, the Reverend McQuoid, in an attempt to work out possible terms of visitation with Biter. The parties arrived at a verbal understanding. On November 4, 1977, while Olyvia was speaking on the telephone with her California attorney, inquiring when the visitation agreement would be ready for signature, Fabian abducted Biter and brought him to the Kajtazi home in Whitestone, Queens, New York. At the time of the abduction the child required surgery to correct a neurological condition.
On November 14, 1977, Olyvia petitioned the Supreme Court of the State of New York, Queens County, for a writ of habeas corpus addressed to the three defendants to produce Biter in court on November 17, 1977. Fabian and Joseph were duly served on November 14, 1977, and Adolph was served in court. Fabian did not appear. Joseph and Adolph told the court that they did not know the whereabouts of Fabian and Biter. The court adjourned the hearing until November 21, 1977, to give defendants the opportunity to retain counsel.
On November 21, 1977, Joseph and Adolph appeared with counsel. Adolph admitted under oath that he had lied on November 17, when he said that he did not know the whereabouts of Fabian and Biter. He stated that Fabian and Biter had been in New York City at the time of the hearing and that on November 19, 1977, Fabian had flown with Biter to Yugoslavia.
Plaintiff Olyvia then sought civil and criminal contempt proceedings against defendants Joseph and Adolph in the Supreme Court of the State of New York, Queens County, on February 24, 1978, alleging obstruction of justice in the habeas corpus proceeding without success. At the conclusion of the proceeding Adolph approached plaintiff's counsel, Henry H. Foster, Jr., and stated, "Neither Fabian or Biter will ever return to the United States. I just want you to know that." (Foster Affid. para. 4).
On February 15, 1978, this action was commenced to recover damages for false imprisonment of the infant Biter and for damages suffered by Olyvia because of the abduction and the intentional infliction of mental suffering.
Though the initial wrong was committed in California, the restraint against plaintiff's will continued in New York. The choice of law is that of New York.
I. Abduction and False Imprisonment
The first cause of action alleges the false imprisonment of the plaintiff Biter and the resulting damage to him having been deprived of the care and companionship of his mother.
False imprisonment is an actionable wrong which involves the intentional interference with the person of another. It is a personal tort, in the nature of a trespass against the person, and is defined by statute as a personal injury.
False imprisonment consists in the unlawful detention of the person of another, for any length of time, whereby he is deprived of his personal liberty. The constituent elements of a cause of action for false imprisonment are that the defendant intended to confine plaintiff, that plaintiff was conscious of such restraint, that plaintiff did not consent to confinement, and that the confinement was not otherwise privileged. Parvi v. Kingston, 41 N.Y.2d 553, 555, 394 N.Y.S.2d 161, 163, 362 N.E.2d 960, 962 (1977); Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 313 cert. denied, Schanbarger v. Kellogg, 423 U.S. 929, 96 S. Ct. 277, 46 L. Ed. 2d 257 (1975). Regarding the second element, i. e., awareness of confinement, it has been held in New York that where a person by incompetency or infancy has no such will as enables him to exercise intelligent and legal volition as to his custody, the action may be predicated upon his restraint or removal against the will of the party having his legal custody. Barker ...