MALVESTUTO v. MALVESTUTO

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

Lucille MALVESTUTO, Plaintiff-Respondent, v. Robert MALVESTUTO, Defendant-Appellant.

Decided: March 31, 1999

Present:  PINE, J.P., HAYES, WISNER, PIGOTT, JR., and HURLBUTT, JJ. Timothy J. Toohey, Lewiston, for plaintiff-respondent. Lipsitz Green Fahringer Roll Salisbury & Cambria, Buffalo (John Albert Collins, of counsel), for defendant-appellant.

 Supreme Court properly granted that part of plaintiff's motion for summary judgment on the cause of action for assault.   Defendant is collaterally estopped from denying that he committed an assault by his plea of guilty to criminal possession of a weapon in the second degree, defined as possession of a gun with intent to use it unlawfully against another, coupled with his admission during the plea colloquy that he shot plaintiff.   The court erred, however, in granting that part of plaintiff's motion for summary judgment on the cause of action for intentional infliction of extreme emotional distress.   The plea colloquy does not establish that defendant intended to cause the victim extreme emotional distress or, indeed, that the victim suffered extreme emotional distress (see, Roe v. Barad, 230 A.D.2d 839, 840, 647 N.Y.S.2d 14, lv. dismissed 89 N.Y.2d 938, 654 N.Y.S.2d 718, 677 N.E.2d 290;  Richard L. v. Armon, 144 A.D.2d 1, 4-5, 536 N.Y.S.2d 1014).   Further, the issue whether defendant's conduct was so outrageous that it exceeded the bounds of decency presents a question of fact for the jury (see, Richard L. v. Armon, supra, at 6, 536 N.Y.S.2d 1014).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: