BACKGROUND AND PROCEDURAL HISTORY These consolidated actions arise out of a religious mailing defendant sent anonymously to plaintiff in the fall of 2015. Plaintiff commenced the first action on October 3, 2016 by filing a summons and endorsed complaint, seeking a judgment in the amount of $25,000.00 based the mailing of an anti — catholic booklet, harassment and interference with her phone, mail and computer. On December 1, 2016, defendant appeared by counsel and filed an answer asserting failure to state a cause of action and a counterclaim for malicious prosecution. An initial court date was set for December 23, 2016. Plaintiff moved for an order for leave to amend her complaint. The motion was denied by the court (Ramseur, J) on September 6, 2017, based on plaintiff’s failure to attach a proposed amended complaint. Plaintiff made a second motion to amend her complaint to change the cause of action from harassment to personal injury due to emotional and physical distress on November 16, 2017, which was denied by the court (Kenny, J), pursuant to a decision and order dated February 26, 2018. On December 1, 2017, plaintiff moved for leave to file a late jury demand. The motion was granted by the court (Ramseur, J) on default, on the return date. On March 1, 2018, plaintiff filed a jury demand, and paid a $70.00 fee. On March 19, 2018, plaintiff filed a motion to compel defendant to respond to outstanding discovery. The motion was granted by the court (Kenney, J) on default on August 2, 2018. On April 10, 2018, plaintiff filed a motion for re-argument of Judge Kenney’s February 26, 2018 denial of her motion to amend the complaint. The motion was denied by the court on April 23, 2018, pursuant to a decision and order which noted in part that the causes of action for intentional infliction of emotional distress were time barred. On May 11, 2018, plaintiff again moved for an order compelling discovery. The motion was granted by the court (Nock, J) on default pursuant to an order which directed defendant to respond to discovery demands within 20 days. On June 29, 2018, plaintiff moved for an order striking defendant’s answer. The court (Kenney, J) denied the motion on the return date and set a final trial date for December 6, 2018. On August 2, 2018, plaintiff commenced the second action by filing a summons and endorsed complaint seeking judgment for $25,000 for personal injury due to ongoing intentional infliction of emotional distress, email account tampering, as well as interference with plaintiff’s router and phone and loss of time from work. Defendant again appeared by counsel and filed an answer asserting a general denial and 18 defenses including statute of limitations. On October 3, 2018, defendant moved for an order granting defendant summary judgment and dismissal of the complaint. On November 19, 2018, plaintiff moved to strike defendant’s answer. The motions were consolidated for disposition and denied pursuant to an order which consolidated both actions for trial. Also in November 2018, plaintiff was found to have improperly marked up a document in the court file and to have acted improperly in the clerks office. This resulted in the court (Sharpe, J) ordering plaintiff to pay $1000 in attorneys’ fees to defendant’s counsel pursuant to a written decision issued November 21, 2018. Additional motion practice was pursued by the parties. Defendant’s counsel withdrew for a period and defendant acted pro se. On November 18, 2019, the actions were assigned to this Court for trial. Plaintiff agreed to withdraw her demand for trial by jury, counsel for defendant appeared, and the court held a bench trial and reserved decision. FINDINGS OF FACT Plaintiff and defendant live in the same building. Before October 2015, they were only casually acquainted. Plaintiff considered them to be acquaintances, defendant appears to have considered them to be friends. Plaintiff is an artist who specializes in painting outdoors. Defendant is a paralegal at Kaye Scholer. On October 15, 2015, defendant, anonymously mailed a religious pamphlet to plaintiff entitled “Last Rites” (Ex 4). Defendant mailed it through the mail room at Kaye Scholer. The envelope was addressed by hand in blue ink, the return address was marked KS 250 West 55th Street, New York, NY 10019. The pamphlet, also referred to as a tract, shows a cartoon depiction of a catholic who is sent into the “lake of fire” to “burn in hell” for practicing as a catholic, instead of following the version of Christianity promoted by the pamphlet which is evangelical Baptist. The tract urges the reader to reject Catholicism, or be barred from heaven. The tract, which is published by Chick Publications, is authored by Jack Chick. The company asserts that it has sold over 150 million copies in over 100 languages, and that ten percent of the publications are aimed against other religions including Mormonism, Islam, Catholicism, and Buddhism (Ex 5). Plaintiff testified that she became very fearful when she received the tract. Plaintiff testified that the date the envelope was postmarked which was October 15,2015, was significant to her, because she was on the Staten Island Ferry when it crashed on October 15, 2003. Plaintiff suffered extensive injuries as a result of the crash, and was awarded $813,000 in a lawsuit brought to compensate her for her injuries (Ex 6). Plaintiff testified that she was frightened by the tract, in part because of violent incidents that took place around the world in 2015. Plaintiff eventually discovered that Defendant had mailed her the pamphlet. Defendant testified that she mailed up to 50 pamphlets from the offices of Kaye Scholer on that date, including to her own family members. The parties engaged in email correspondence about the tract in January 2016 (Ex 2). In the emails, defendant apologized for having offended plaintiff. However on January 19, 2016, defendant wrote plaintiff an email that included the following statements: We are all going to die (you, me and every member of my family). Where we spend eternity will be determined by a decision we make here on earth — not by how good a person we think we are, or by how many good things we have done or if we believe that we have evolved or ascended to a higher spiritual level. …. Do you recognize yourself as a sinner and understand that there is nothing that you can do to save yourself?…. If you understand and believe these things and if you recognize yourself as a sinner in need of a savior, then if you believe on the Lord Jesus Christ thou shalt be saved. I have accepted the Lord Jesus Christ as my savior and I know that when I die I will go to heaven. My family does not believe and, if any of them were to die tomorrow, they would not go to heaven but to hell. I sent them tracts because I do not want them to go to hell. I want them to go to heaven. It is what I want for you too (Ex 2). Plaintiff turned over the tract and the emails to the police, and on January 27, 2016, defendant was arrested and charged with aggravated harassment in the second degree pursuant to PL 240.30(1)(a).1 A temporary order of protection was issued by Criminal Court (Watters, J) on March 15, 2016 in favor of plaintiff. The temporary order of protection had an expiration date of September 14, 2016 (Ex 3). On May 2, 2016, the criminal court action was dismissed based on the assistant district attorney’s representation that the People could not prove the case beyond a reasonable doubt, and the temporary order of protection was extinguished (Ex B). During this period, plaintiff also experienced interference with her emails and phone. Plaintiff believed that defendant was the cause of these disturbances. DISCUSSION After trial, the action is dismissed as the court finds that plaintiff failed to establish any cognizable cause of action against defendant, and further that plaintiff failed to prove any actual damages. Defendant’s counterclaim for malicious prosecution is also dismissed. Plaintiff Failed to Establish Any Cause of Action or Prove Any Damages Under New York law, there is no civil cause of action for harassment of the type alleged by plaintiff (Bd. of Managers of Exec. Plaza Condo. v. Jones, 251 AD2d 89, 90; Goldstein v. Tabb, 177 AD2d 470). The tort of intentional infliction of emotional distress has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress (Howell v. New York Post Co., 81 NY2d 115, 121). Liability is only established where the conduct is so outrageous in character, and extreme in degree, as to exceed all bounds of decency, and be utterly intolerable in a civilized community ( Id at 122). The First Amendment to the United States Constitution prohibits the courts of this State from evaluating the religious beliefs of a church or individual (Meroni v. Holy Spirit Ass’n for Unification of World Christianity, 119 AD2d 200, 202 ). While the court understands why the plaintiff found the tract and email disturbing, the court does not find that the conduct rose to the level of intentional infliction of emotional distress. In regards to any alleged claim for personal injury, plaintiff failed to offer any competent medical expert to establish that she was emotionally, physically or psychologically injured as a result of defendant’s conduct. Finally as noted above, plaintiff failed to prove any actual damages. Defendant Failed to Establish a Claim for Malicious Prosecution The elements of a claim for malicious prosecution are (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice (Mendez v. City of New York, 137 AD3d 468, 471 (NY App. Div. 2016). It is well settled that a civilian who makes a complaint to the police or furnishes information to law enforcement authorities, who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution (Du Chateau v. Metro-N. Commuter R. Co., 253 AD2d 128, 131). CONCLUSION In conclusion both complaints in both actions and the counterclaim for malicious prosecution are dismissed with prejudice. This constitutes the decision and order of the court. Dated: November 19, 2019 New York, New York
