HARTMAN v. 536 540 5TH ST EQUITIES INC

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Supreme Court, Appellate Division, First Department, New York.

Jean Pauline HARTMAN, Plaintiff-Appellant, v. 536/540 E. 5TH ST. EQUITIES, INC., Defendant-Respondent.

Decided: June 21, 2005

MAZZARELLI, J.P., FRIEDMAN, SULLIVAN, WILLIAMS, GONZALEZ, JJ. Jean Pauline Hartman, appellant pro se. Sperber Denenberg & Kahan, P.C., New York (Jacqueline Handel Harbour of counsel), for respondent.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered September 24, 2004, which granted defendant landlord's motion to dismiss plaintiff former tenant's complaint for failure to state a cause of action, unanimously affirmed, without costs.

New York does not recognize a civil cause of action for harassment (see Jacobs v. 200 E. 36th Owners Corp., 281 A.D.2d 281, 722 N.Y.S.2d 137 [2001] ).   Giving plaintiff's allegations every favorable intendment, they appear to seek recovery for emotional distress intentionally inflicted by means of abusive law suits and breaches of the warranty of habitability.   However, the documentary evidence conclusively establishes that none of the three proceedings instituted by defendant against plaintiff were brought without justification, and, except as authorized by court order, no process was employed that interfered with plaintiff's person or property (see Matter of Walentas v. Johnes, 257 A.D.2d 352, 354, 683 N.Y.S.2d 56 [1999], lv. dismissed 93 N.Y.2d 958, 694 N.Y.S.2d 635, 716 N.E.2d 700 [1999];  Artzt v. Greenburger, 161 A.D.2d 389, 390, 555 N.Y.S.2d 127 [1990] ). Plaintiff should have raised any warranty of habitability claims in the nonpayment proceeding that was settled or in the holdover proceeding that resulted in her eviction.   In any event, the alleged breaches of the warranty fall short of the extreme, outrageous conduct necessary to support a cause of action for the intentional infliction of emotional distress (see Howell v. New York Post Co., 81 N.Y.2d 115, 121-122, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993] ).