Appeal from an order and judgment (one paper) of the Supreme Court, Oneida County (Samuel D. Hester, J.), entered October 27, 2009. The order and judgment granted the motion of defendant D.A. Brigham-Manley for a directed verdict of no cause of action.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on March 25, 2011
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ.
It is hereby ORDERED that the order and judgment so appealed from is modified on the law by denying that part of the
pretrial cross motion of defendant D.A. Brigham-Manley for summary judgment dismissing the fifth cause of action
against her, denying that part of her motion at the close of proof at trial for judgment as a matter of law dismissing
the sixth cause of action against her, reinstating the fifth and sixth causes of action against that defendant,
granting those parts of plaintiffs' cross motion seeking leave to supplement the second amended complaint only
with respect to the fifth and sixth causes of action, upon condition that plaintiffs shall serve the proposed pleading
within 20 days of service of a copy of the order of this Court with notice of entry, and as modified the order and
judgment is affirmed without costs, and a new trial is granted on the fifth and sixth causes of action against that
Plaintiffs commenced this action seeking, inter alia, damages for emotional distress that they sustained as a result of the actions of defendants. The facts of this case, developed in a week-long trial during which 13witnesses testified for plaintiffs, are disturbing. The evidence established that plaintiff Florine Zane has lived in her house in Utica for 43 years. D.A. Brigham-Manley (defendant) moved into the house next door to Zane in approximately 1993 with her then-husband. The infant plaintiffs, who were 6 and 11 years old at the time most of the incidents took place, resided with Zane, their grandmother. Plaintiff Lisa Zane-Morreale is Zane's daughter and shares joint custody of the infant plaintiffs, her nephews, with Zane. Although Zane-Morreale did not live with Zane and the children, her testimony established that she was often present at Zane's house. The conflicts between plaintiffs and defendant began 10 years after defendant moved to that location, when defendant's husband moved out of defendant's house and defendant Mark S. Corbett, defendant's boyfriend, moved in. Over approximately the next 1½ years, Corbett began an unrelenting campaign of harassment against plaintiffs and their visitors, including swearing and making obscene gestures at them, blowing an air horn, videotaping as well as taking pictures of them, and shining a spotlight and red laser on them. For example, Zane testified at trial concerning incidents in which Corbett called her a "f*** asshole" and a "f*** fat ass bitch." She further testified that, any time someone came to her house, Corbett would come outside and would swear at the visitor.
Defendants' most disturbing conduct was directed at the infant plaintiffs. Zane testified that Corbett called the infant plaintiffs "crackheads" and "f*** little bastards" and made an obscene hand gesture toward them. The younger infant plaintiff testified at trial that both Corbett and defendant swore at him and his friends. He also testified that Corbett would stand outside and videotape him while he played with his friends. Although the testimony established that Corbett was the major offender of the outrageous conduct, the testimony further established that defendant was also a participant and in fact encouraged Corbett to engage in that conduct. For example, when Corbett was swearing at a member of plaintiffs' family, Corbett asked defendant, "Do you want me to beat his f*** ass?," to which she replied, "[Y]es, babe, beat his f*** ass." Corbett and defendant directed similar conduct toward an attorney on two occasions when the attorney visited Zane.
There are a multitude of similar examples of the behavior of defendant and Corbett documented throughout the record. There can be no dispute that such behavior is appalling and would be abhorrent to anyone living next door to them. Although Zane often telephoned the police regarding such behavior, the police would tell her that it was a "civil matter." In any event, those telephone calls had no effect on Corbett's behavior. Zane testified that, after the police came when she complained about Corbett shining a red light on her, he repeated that behavior after the police departed.
At the conclusion of the trial, Supreme Court granted defendant's motion for judgment as a matter of law against her, and directed that a judgment of no cause of action be entered in her favor. We agree with plaintiffs that the court erred in granting that part of defendant's motion with respect to the sixth cause of action against her, for negligence, and we therefore modify the order and judgment accordingly. Plaintiffs alleged in that cause of action, inter alia, that defendant was negligent in allowing the willful and malicious conduct of Corbett to occur at her residence. "A property owner, or one in control or possession of real property, has the duty to control the conduct of those whom he [or she] permits to enter upon it . . .[,] provided that the owner knows that he [or she] can and has the opportunity to control the third-parties' conduct and is reasonably aware of the necessity for such control" (Mangione v Dimino, 39 AD2d 128, 129; see D'Amico v Christie, 71 NY2d 76, 85). Plaintiffs presented evidence establishing not only that defendant was aware of Corbett's conduct but that, as previously noted, she would join in and encourage his behavior.
Defendant contends that she did not have the opportunity to control Corbett's behavior because " [a] reasonable opportunity or effective means to control a third person does not arise from the mere power to evict' that person as tenant" (Torre v Burke Constr., 238 AD2d 941, 942). The evidence at trial, however, did not establish that defendant was Corbett's landlord but, rather, it suggested that Corbett was simply defendant's live-in boyfriend and thus was a guest on her property. Defendant further contends that she had no reason to be aware of the need to control Corbett because she did not know of any conduct by Corbett that endangered plaintiffs. The record belies that contention. Plaintiffs presented evidence that, inter alia, Corbett would shine a spotlight in Zane's eyes as she drove her vehicle in and out of her driveway, which created an unreasonable risk of harm to her. Based on the testimony presented by plaintiffs, it cannot be said that "it would . . . be utterly irrational for a jury to reach [a verdict in favor of plaintiffs]" on the negligence cause of action against defendant (Cohen v Hallmark Cards, 45 NY2d 493, 499).
We disagree with the dissent that plaintiffs cannot maintain the negligence cause of action against defendant because the harm to plaintiffs did not occur on defendant's property. Under the circumstances of this case, we conclude that such a narrow definition of a landowner's duty is untenable. Indeed, the facts in DeRyss v New York Cent. R.R. Co. (275 NY 85) support our position. In that case, defendant Joseph M. Hard, an employee of the defendant railroad, was working on a signal bridge owned and controlled by the railroad (id. at 89-90). While working, Hard permitted a non-employee of the railroad to climb up a ladder to the signal bridge and to use a rifle to shoot at ducks out in the river (id. at 90). In attempting to shoot the ducks, the non-employee shot and killed the plaintiff's decedent, who was sitting in a blind on property not owned by the railroad (id.). The case proceeded to trial, and the court, inter alia, found that Hard was liable as a matter of law (id. at 91). On appeal, the Court of Appeals affirmed that finding of liability, concluding that, "[i]f Hard, having control of the premises and the situation, not only permitted, but invited [the non-employee] to shoot at ducks in the river under circumstances and conditions [that] would indicate to a reasonably prudent [person] that it was dangerous to others so to do, he would be liable . . . for the consequences" (id. at 94). The Court determined that the issue was ...