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UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBEL PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION.

The Third Department affirmed Supreme Court’s awards of damages (upon defendant’s default) for libel per se and abuse of process, as well as punitive damages and attorney’s fees. The Third Department determined the causes of action for intentional infliction of emotional distress and violation of privacy were not viable, and Supreme Court did not have the authority to issue an order of protection. Plaintiff alleged defendant had contacted his employers making false allegations and had initiated many actions against him raising issues already litigated. With respect to intentional infliction of emotional distress, violation of privacy, and the order of protection, the court explained:

A cause of action for intentional infliction of emotional distress should not be entertained “where the conduct complained of falls well within the ambit of other traditional tort liability” … . Here, plaintiff’s complaint incorporated his libel and abuse of process allegations as the basis for this cause of action. Because damages were awarded on those causes of action, the damages awarded on the cause of action for intentional infliction of emotional distress must be vacated.

A cause of action for violation of the right to privacy under Civil Rights Law §§ 50 and [*4]51 is “strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person” … . Absent from the proof furnished by plaintiff was any indication that defendant sought to use his name or photograph “for advertising purposes or for the purposes of trade only” … . Therefore, Supreme Court should have determined that this was not a viable cause of action. …

Supreme Court can properly issue an order of protection in a matrimonial action under Domestic Relations Law §§ 240, 252 … ; here, no matrimonial action was pending. Although such an order is available under Family Ct Act article 8, the pleadings do not contain allegations of conduct that would constitute one of certain enumerated family offenses … . Xiaokang Xu v Xioling Shirley He, 2017 NY Slip Op 01412, 3rd Dept 2-23-17

 

DEFAMATION (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/LIBEL PER SE (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/ABUSE OF PROCESS (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/PRIVACY, VIOLATION OF (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/ORDER OF PROTECTION (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)

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A NEW HEARING ON FATHER’S PETITION TO RELOCATE IS REQUIRED BECAUSE THE COURT MAY HAVE PLACED TOO MUCH EMPHASIS ON THE CHILD’S ENROLLMENT IN A PARTICULAR SCHOOL AS THE BASIS FOR GRANTING THE PETITION (THIRD DEPT). ​
WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT).
EXPERT EVIDENCE ABOUT THE EFFECT OF A DRUG MIXED WITH ALCOHOL ON DEFENDANT’S ABILITY TO FORM THE INTENT TO COMMIT MURDER AND ASSAULT SHOULD HAVE BEEN ADMITTED; DEFENDANT SHOULD HAVE BEEN ALLOWED TO LAY A FOUNDATION TO QUALIFY AN EMAIL WHICH INCLUDED HEARSAY AS A BUSINESS RECORD; NEW TRIAL ORDERED.
DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT).
DEFENDANT WAS NOT ADEQUATELY INFORMED OF THE RISKS OF CONTINUING TO BE REPRESENTED BY DEFENSE COUNSEL IN THE PLEA PROCEEDINGS AFTER THE JUDGE AND DEFENSE COUNSEL WERE INFORMED DEFENSE COUNSEL’S FORMER AND CURRENT CLIENTS WOULD BE WITNESSES AT DEFENDANT’S TRIAL, DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (THIRD DEPT).
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FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

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