Court dismisses harassment, defamation claims

Daily Record (Rochester, NY), Jun 6, 2002 by Nora Jones

Did the complaint establish claims of harassment and defamation by plaintiff's ex-husband? Were her allegations of intentional infliction of emotional distress, interference with family relationships, stalking her, and illegal behavior sufficient to withstand the defendant's motion for summary judgment? In Dr.

Pepi Schafler v. Donald Summer, U.S. District Court Judge Michael A. Telesca reviewed plaintiff's seven causes of action which also included claims that her former husband cashed checks that were not rightfully his and burglarized their marital home. Finding that plaintiff failed to show a basis for the claims asserted, the District Court for the Western District of New York granted defendant's motion for summary judgment and denied plaintiff's cross motions. Background Dr. Pepi Schafler was divorced from defendant Donald Summer on March 17, 1993, following a "nine year legal odyssey [sic]." Claiming that the defendant engaged in tortious conduct during and after the marriage, plaintiff filed a complaint alleging 40 different acts of tortious conduct or illegal behavior. Most of the allegations against her ex-husband involved incidents throughout the 1990s, with very few occurring in the last year or two. The instant action follows on the heels of a suit plaintiff filed against the defendant's attorney (see Schafler v. Aloi, No. 01- CV-6015 (WDNY July 19, 2001) affd 31 Fed Appx. 770, 2002 WL 535075 (2d Cir. 2002)). Because the U.S. District Court for the Western District of New York dismissed that case, plaintiff argues that she cannot obtain a fair trial here and seeks removal to another jurisdiction, and recusal of the judge. In addition to plaintiff's numerous claims of emotional and financial injury, she also sought restitution and reimbursement. First Cause of Action Charging that the defendant perjured himself in court during divorce and bankruptcy proceedings, the plaintiff specifically asserted that the defendant suborned perjury, committed fraud, suborned fraud, lied to a court, engaged in a conspiracy and pursued legal remedies under false pretenses. Quoting from the earlier Schafler decision, which in turn quoted Newin Corp. v. Hartford Accident and Indemnity Co., 371 NYS2d 884, 889 (NY 1975), Judge Telesca wrote that plaintiff's claims are barred based on "the ancient rule that the courts of this state will not entertain civil actions for damages arising from alleged subornation of perjury in a prior civil proceeding." In regard to plaintiff's claim that her former husband made false statements to court tribunals and suborned fraud, Judge Telesca cited S.O.K.F.C., Inc. v. Bell Atlantic Tricon Leasing Corp., 84 F3d 629, 633 (2d Cir. 1996), noting, "To successfully plead a common law fraud claim, plaintiff must allege a 'material, false representation, an intent to defraud thereby, and reasonable reliance on the representation, causing damage to the plaintiff.'" Finding no indication that plaintiff relied on defendant's alleged fraudulent representations, the court dismissed this cause of action. Second Cause Of Action Despite allegations that Summer engaged in racketeering, subornation of racketeering, corruption, collusion, and malicious prosecution, the court found that "Plaintiff's complaint is devoid of any facts that would support a racketeering charge, and ... there is no independent cause of action for subornation of racketeering. *** Plaintiff's claims for malicious prosecution and subornation of malicious prosecution are barred by New York's one- year statute of limitations for intentional torts." The court also found that plaintiff's claims for corruption, collusion, and coercion failed to state a claim upon which relief could be granted, since "there is no recognized cause of action based on those alleged wrongs." Third and Fourth Causes of Action Alleging that her former husband stalked her for 30 years, abused his law license to obtain information, and lied in numerous legal proceedings, plaintiff's third cause of action did not establish a prima facie malpractice action or state a claim upon which relief could be granted. The claim that the defendant libeled, slandered, and defamed the plaintiff was barred by the applicable statute of limitations as the last actions relating to these alleged occurrences took place in April of 1998. "A prima facie tort claim that is based on intentional conduct ... is subject to a one-year statute of limitations period," wrote the court, quoting Della Villa v. Constantino, 246 AD2d 867 (3rd Dept. 1998). Although plaintiff did complain about an incident on September 11, 2000, there was no evidence that the incident involved any threatening actions or truly tortious conduct. "Plaintiff's claim that defendant 'bullied' her is dismissed on grounds that there is no recognized cause of action for bullying," noted the court. Further, stalking only recently became an illegal act in the state, and there is not yet a civil course of action to be taken for this offense, causing Judge Telesca to conclude, "I dismiss plaintiff's stalking claims as vague and conclusory." Fifth And Sixth Causes Of Action Intentional infliction of emotional distress and interference with family relationships were also claims that plaintiff failed to successfully plead. Looking closely at two possible theories of emotional distress (bystander theory and direct duty theory), the court concluded that plaintiff could not make out a claim under either approach. Claiming that the defendant stalked and harassed her and her family members, the court dismissed these assertions noting that "there is no recognized tort for interference with family relationships." Interference With Property, Restitution Plaintiff alleged that through defendant's corruption, racketeering, conspiracy, and other acts, he interfered with her property and caused her to suffer financial losses. The court found that plaintiff failed to state a cause of action for any of these alleged wrongs, therefore the claims for interference with property were dismissed. Lastly, the plaintiff asserted that she is entitled to restitution and reimbursement, without stating a claim upon which such relief might be granted. Court's Conclusion Finding plaintiff's pleadings insufficient to withstand a motion for summary judgment, the court granted defendant's motion to vacate the entry of default judgment and granted the motion for summary judgment. At the same time, the court found no basis for plaintiff's motion to transfer the action and denied this motion along with the motion for recusal. Gary Marshall, a recent graduate of SUNY Geneseo, contributed to this article.