Matrimonial Representation and Legal Malpractice
How far may an attorney go when dealing with a client before the line is crossed and extreme emotional distress may be charged? InBlumencranz v Botter 2012 NY Slip Op 32089(U)
July 27, 2012 Sup Ct, Nassau County Docket Number: 15489/11 Judge: Joel K. Asarch we see behavior that is "utterly failing in propriety and professionalism, is not so outrageous as to exceed all reasonable bounds of decency as a matter of law. Insofar as plaintiff includes alleged professional failures" damages for the intentional infliction of emotional distress are not recoverable in a legal malpractice action Epifano v. Schwartz 279 AD2d 501 , 503 (2d
"Plaintiff, Lisa Blumencranz, retained the services of defendant, Allan S. Botter, to represent her in a divorce proceeding. Blumcrantz alleges that her former husband presented her with the names of two attorneys and advised her to choose one of them "if she wished the matter to proceed smoothly . He allegedly warned that if she retained an attorney of her own choosing, the choice would result in greater difficulty" for her. Blumencranz avers that her former husband had "been
in contact" with the attorney she chose, defendant Alan S. Botter, before she retained him. He had reached "an understanding" with Botter that he would be "paid directly by her then-husband" for
"She alleges that Botter "belittled and demeaned" her, and mocked her when she begged" for changes to the child custody agreement. She alleges that the parties had joint custody but final decisions were with the husband, and that no set holiday schedule was included. The agreement also allowed the children "to decide when and if' they would speak to her. She alleges that her attorney told her that is how things were and to "deal with it.
Addressing the emotional injure causes of action, the tort of intentional infliction of emotional distress predicates liability upon the basis of "extreme and outrageous conduct which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society (Freihofer v. Hearst Corp. 65 NY2d 135 (1985)). The requirements are "rigorous, and difficult to satisfy" (Howell New York Post Co. 81 NY2d 115, 122 (1993)), as even conduct which may be characterized as "unacceptable and socially repugnant" does not "rise to the level of atrocity" (Shea v. Cornell University, 192 AD2d 857 (3d Dept 1993)). The wrongful conduct must consist of more than "insults" or "indignities" and must be so "shocking and outrageous" as to "exceed all reasonable bounds of decency (Nestlerode v. Federal Ins. Co., 66 AD2d 504 508 (4 Dept 1979), app denied 48 NY2d 604 (1979)). An example of conduct which survived the difficult threshold for atrocious conduct may be found in Bunker Testa, 234 AD2d 1004 (4 Dept 1996) There the complaint alleged inter alia [* 4] yelling and gesturing obscenely at plaintiff , following her home, refusing to leave the premises and significantly, "following her children. .. and telling her that he knew where the children went to school and when they got out of school" (Id). Here, the nature of plaintiff's alleged complaints in the cause of action for the intentional infliction of emotional harm amount to insult emotional distress and inadequate legal representation. The alleged conduct, while utterly failing in propriety and professionalism, is not so outrageous as to exceed all reasonable bounds of decency as a matter of law. Insofar as plaintiff includes alleged professional failures "( d)amages for the intentional infliction of emotional distress
are not recoverable in a legal malpractice action" (Epifano v. Schwartz 279 AD2d 501 , 503 (2d