Opinion
8832 Index 101927/11
03-28-2019
Lois PAULINO, Plaintiff–Appellant–Respondent, v. Valerie PAULINO, Defendant–Respondent–Appellant, City of New York, et al., Defendants.
Hegge & Confusione, LLC, New York (Michael Confusione of counsel), for appellant-respondent. Goldberg, Miller & Rubin, New York (Harlan R. Schreiber of counsel), for respondent-appellant.
Hegge & Confusione, LLC, New York (Michael Confusione of counsel), for appellant-respondent.
Goldberg, Miller & Rubin, New York (Harlan R. Schreiber of counsel), for respondent-appellant.
Renwick, J.P., Richter, Kapnick, Kahn, Oing, JJ.
Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered March 2, 2018, which, insofar as appealed from as limited by the briefs, granted defendant Valerie Paulino's (defendant) cross motion for summary judgment dismissing the cause of action for intentional infliction of emotional distress as against her, and denied defendant's cross motion as to the cause of action for wrongful eviction, unanimously modified, on the law, to deny the cross motion as to the cause of action for intentional infliction of emotional distress, and otherwise affirmed, without costs. There is a triable issue of fact as to whether defendant's conduct was sufficiently outrageous to sustain a cause of action for intentional infliction of emotional distress, i.e., whether defendant engaged in "a deliberate and malicious campaign of harassment or intimidation" ( Scollar v. City of New York , 160 A.D.3d 140, 146, 74 N.Y.S.3d 173 [1st Dept. 2018] [internal quotation marks omitted]; see also 164 Mulberry St. Corp. v. Columbia Univ. , 4 A.D.3d 49, 56, 771 N.Y.S.2d 16 [1st Dept. 2004], lv dismissed 2 N.Y.3d 793, 781 N.Y.S.2d 291, 814 N.E.2d 463 [2004] ; Vasarhelyi v. New School for Social Research , 230 A.D.2d 658, 661, 646 N.Y.S.2d 795 [1st Dept. 1996] ). An issue of fact also exists as to whether defendant abused her power (see Scollar , 160 A.D.3d at 146, 74 N.Y.S.3d 173 ) by leading plaintiff to believe that she was going to use her position as an auxiliary police officer to get plaintiff thrown out of her home.
Although plaintiff mentions negligent infliction of emotional distress on appeal, the complaint does not assert such a cause of action as against defendant.
Defendant contends that plaintiff should be estopped from arguing that she is a New York resident based on a single federal tax return listing Florida as her residence. This argument is unpreserved, as neither defendant's answer and affirmative defenses nor her briefs on her motion mentioned estoppel or quasi-estoppel (see McHale v. Anthony , 70 A.D.3d 466, 467, 895 N.Y.S.2d 47 [1st Dept. 2010] ; Wolkstein v. Morgenstern , 275 A.D.2d 635, 637, 713 N.Y.S.2d 171 [1st Dept. 2000] ). Were we to reach the merits, we would reject the argument. The address as designated on a tax return is only one of many factors to consider in determining primary residency ( Glenbriar Co. v. Lipsman , 11 A.D.3d 352, 353, 783 N.Y.S.2d 546 [1st Dept. 2004], affd 5 N.Y.3d 388, 804 N.Y.S.2d 719, 838 N.E.2d 635 [2005] ). We note that, at her deposition, plaintiff explained that listing a Florida business address as her residence on the federal tax return was an accountant's error (see West 157th St. Assoc. v. Sassoonian , 156 A.D.2d 137, 548 N.Y.S.2d 184 [1st Dept. 1989] [explanation sufficient to raise issue of fact in opposition to landlord's motion for summary judgment] ). Moreover, plaintiff's New York State tax return listed the disputed New York City apartment as her permanent home address and listed the Florida business as a mere mailing address (see 310 E. 23rd LLC v. Colvin , 41 A.D.3d 149, 837 N.Y.S.2d 134 [1st Dept. 2007] [evidence supported finding that New York City apartment was tenant's primary residence where upstate residence was specified as home in certain tax-related documents but New York State tax returns specified that tenant was a full-year resident of the City] ).