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NEUFELD v. NEUFELD

January 23, 1996

Shirley Neufeld, et al., Plaintiffs, against Jacob Neufeld, Defendant.


The opinion of the court was delivered by: MOTLEY

 Defendant in this diversity suit for intentional infliction of emotional distress has moved, inter alia, for dismissal of the complaint on statute of limitations grounds. Although many of the acts at the heart of plaintiffs' case did occur prior to the time within which this action should have been commenced under the appropriate New York limiting statute, plaintiffs allege that the acts complained of are part and parcel of a single, continuing tort, thus exempting them from the statute of limitations bar. New York law recognizes that allegations of a continuing tort may toll otherwise applicable statutes of limitation. As the following discussion shows, plaintiffs' allegations that defendant engaged in a concerted campaign over several years to damage the mental capacity of plaintiffs are sufficient to make out a timely cause of action for continuing tort based on intentional infliction of emotional distress.

 Defendant contends that because an amendment to the complaint should not "relate back" to the date of the commencement of the action, such amendment should be disallowed as time-barred. Lastly, defendant argues that venue is improper in this district. For the reasons stated herein, both of these arguments also fail.

 BACKGROUND

 Plaintiffs Shirley and Nettie Neufeld filed this tort action alleging intentional infliction of emotional distress arising out of the campaign of harassment and mental abuse waged by defendant Jacob Neufeld, Shirley Neufeld's half-brother and Nettie Neufeld's son.

 By previous order, this court denied defendant's prior motion to dismiss for failure to state a claim upon which relief can be granted. *fn1" Although the facts of the instant case are set forth in this prior opinion, the following is a recitation of those matters pertinent to the instant motion.

 Since this court's prior decision in the instant case, plaintiffs have twice amended their complaint. Through these amendments, Nettie Neufeld was added as a plaintiff and greater detail was provided concerning the time-frame in which certain actions occurred. (See Amended Complaint, dated July 13, 1995, at P 2; Second Amended Complaint, dated October 6, 1995, (hereinafter "the Complaint"), at P 17(G) and (H).

 The Complaint in its current form alleges that Nettie Neufeld and her husband, Israel Neufeld, each executed wills naming Shirley Neufeld as executrix and leaving fifty percent of their estate to plaintiff, twenty-five percent to plaintiff's sister, Ann Hirsch, and twenty-five percent to defendant. Nettie and Israel Neufeld each executed codicils to their wills that provided that anyone attempting to contest the wills would be disinherited.

 In 1991, prior to the death of Israel Neufeld, defendant allegedly coerced Shirley Neufeld to provide him access to the wills, which were under her control. Upon reading the wills, defendant became irate because he was not named executor and felt that these wills should have been more generous to him. Soon after defendant learned of the contents of Nettie and Israel Neufeld's wills, Israel Neufeld died. (Complaint at P 11.)

 It is alleged that "both prior to and subsequent to the death of Israel Neufeld" defendant "intentionally schemed and engaged in activities designed to cause emotional disturbance and physical harm" to plaintiffs in an effort to upset them emotionally, so that Shirley Neufeld would suffer a nervous breakdown and defendant would gain control of all of Nettie Neufeld's assets. (Complaint at PP 12-13.) *fn2"

 Additionally, defendant engaged in the following acts designed to bring about the same end:

 1. In July of 1991, defendant allegedly drugged Nettie Neufeld, brought her to Maryland and had her confined to a psychiatric institute there. Shirley Neufeld was forced to go to Maryland and engage local counsel to obtain the court-ordered release of her mother in September 1991. The trauma Nettie suffered from this experience has allegedly left her confined to a wheelchair. (Complaint at P 17(A)-(E).)

 2. In July of 1991, defendant allegedly attempted to gain control over an account in Nettie Neufeld's name in a Brooklyn, New York branch of Chemical Bank by falsely communicating to an employee of the bank that Shirley Neufeld's power of attorney for Nettie Neufeld was being challenged. (Complaint at P 17(F).)

 3. Beginning in December of 1992, defendant allegedly contacted various agencies and governmental bodies, such as the New York City Police Department, the Social Services Division of the City of New York, and Protective Services of the City of New York, and made false complaints against Shirley Neufeld, claiming that she was mistreating Nettie Neufeld. Defendant, who is employed by the United States Department of the Air Force at the Pentagon, allegedly used the auspices of his position with the United States Government to influence the New York City agencies to investigate Shirley Neufeld and her alleged treatment of Nettie Neufeld. The agencies, it is alleged, have been prompted to investigate Shirley Neufeld's treatment of Nettie Neufeld based on defendant's complaints. (Complaint at P17(G) and (I).)

 4. On several occasions beginning in July 1993, defendant's children, at defendant's insistence, threatened the live-in health aide hired by Shirley Neufeld to help care for her mother. (Complaint at P 17H.)

 ANALYSIS

 I. MOTION TO DISMISS ON STATUTE OF ...


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