New York Appellate Division Reports

MITCHELL v. GIAMBRUNO, 500061 [3d Dept 12-21-2006] 2006 NY
Slip Op 09673 SUSAN MITCHELL et al., Respondents, v.
MICHAEL GIAMBRUNO et al., Appellants, et al., Defendant.
500061. Appellate Division of the Supreme Court of New
York, Third Department. Decided and Entered: December 21,

Appeal from a judgment of the Supreme Court (Dawson, J.),
entered June 3, 2005 in Clinton County, upon a verdict
rendered in favor of plaintiffs.

Gregory LaDuke, Lake Placid, for Michael Giambruno,

Kimberly Granmoe, Morrisville, appellant pro se.

Darrell Bowen, Plattsburgh, for respondents.




Plaintiffs are a same-sex couple who purchased and moved
into a house in the Village of Dannemora, Clinton County,
in 1999. In this action commenced in November 2002,
plaintiffs accused defendants, their neighbors, of, among
other things, the intentional infliction of emotional
distress. As the result of a jury verdict, plaintiff Susan
Mitchell was awarded the sum of $50,000 and plaintiff
Elizabeth Meseck was awarded $35,000. Defendants Michael
Giambruno, Corrine Giambruno and Kimberly Granmoe
(hereinafter collectively referred to as defendants)[fn1]
appeal, contending that plaintiffs’ trial evidence was
insufficient to support the alleged cause of action.

It is well settled that in a cause of action for
intentional infliction of emotional distress, a plaintiff
must plead and prove four elements: (1) extreme and
outrageous conduct; (2) the intentional or reckless nature
of such conduct; (3) a causal relationship between the
conduct and the resulting injury; and (4) severe emotional
distress (see Howell v New York Post Co., 81 NY2d 115, 121
[1993]; Christenson v Gutman, 249 AD2d 805, 808 [1998]).
Plaintiffs’ trial evidence reveals that the interaction
between plaintiffs and defendants began as a result of what
may fairly be characterized as a boundary line dispute.
This dispute escalated and a criminal trespass complaint
was filed by the Giambrunos against Mitchell and a
restraining order was issued against her. Thereafter, for
approximately two years, defendants conducted what can only
be characterized as a relentless campaign of lewd comments
and intimidation directed at plaintiffs and their
lifestyle, both in private and in public. The final act
prior to the institution of this action occurred when
defendants constructed two mock grave sites on the
Granmoes’ property directly facing plaintiffs’ home, which
created a fear in plaintiffs that the graves were intended
for them.

Although insulting language intended to denigrate a person
may not, in and of itself, rise to the required level of
extreme and outrageous conduct, liability may be premised
on such expressions where, as here, defendants’ campaign of
harassment and intimidation is constant (see Leibowitz v
Bank Leumi Trust Co. of N.Y., 152 AD2d 169, 182 [1989];
Graham v Guilderland Cent. School Dist., 256 AD2d 863, 864
[1998], lv denied 93 NY2d 803 [1999]; Nader v General
Motors Corp., 25 NY2d 560, 569 [1970]; Gill Farms v Darrow,
256 AD2d 995, 997 [1998]). Accordingly, we conclude that
this record contains sufficient evidence to support the
jury’s determination that the first two elements of the
cause of action have been proven, i.e., that the conduct of
the defendants was extreme, outrageous and intentional.

Defendants’ arguments that plaintiffs failed to prove a
causal connection between defendants’ conduct and
plaintiffs’ illnesses is based on plaintiffs’ failure to
ask either medical witness for an opinion concerning
causation and because defendants allege that plaintiffs had
other stressors in their lives. We are unpersuaded by
either argument. Insofar as a participant (as compared to a
bystander) is concerned, where a duty owed the participant
is breached, resultant injury is compensable only if it is
a direct (not consequential) result of the breach (see
Kennedy v McKesson Co., 58 NY2d 500, 506-507 [1983]; Probst
v Cacoulidis, 295 AD2d 331, 332 [2002]). Here, the evidence
of direct injury from the breach is manifest. Nurse
practitioner Paula Covey testified on behalf of Mitchell,
and physician Richard Webber testified on behalf of Meseck.
Both testified concerning their training and experience in
diagnosing and treating anxiety and depression and the
resultant physical manifestations, if any. Both testified
that plaintiffs were patients in their office prior to and
during the two years encompassed by defendants’ conduct.
Each testified that their patients’ level of anxiety
increased as did the depth of their depression as they
continued to complain about defendants’ conduct, the
necessity of retaining counsel, the lawsuit and the trial.
The frequency with which plaintiffs sought treatment, as
well as their medication to control their conditions,
increased during this period. Covey testified to Mitchell’s
resultant indigestion, diarrhea and irritable bowel
syndrome and her hospitalization for brief periods on more
than one occasion. Given this testimony, we conclude that
the causal connection between defendants’ conduct and
plaintiffs’ illnesses was well within the ken of the
ordinary lay juror and the medical practitioner’s opinion
as to causation would be mere surplusage. Moreover, given
the timing of the events, the jury could rationally
conclude that the other stressors Mitchell’s job stress,
Meseck’s stress in caring for Mitchell’s 101-year-old
grandmother and the arguments they had with each other over
whether to retain counsel and sue all were temporarily
related to defendants’ conduct and were caused or
exacerbated by them. [*3]Finally, the jury could rationally
conclude from the evidence that the emotional distress of
each plaintiff was severe.

To the extent not hereinabove discussed, we have
considered defendants’ remaining arguments and found each
to be lacking in merit.

Cardona, P.J., Mercure, Spain and Carpinello, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

[fn1] All causes of action against defendant Tony Granmoe
were dismissed at trial.