Ahrens v. Stalzer

Full title: EDWARD AHRENS and LORI AHRENS, Plaintiff(s) v. FRANK STALZER, Defendant(s)

Court: District Court, Nassau County

Date published: Aug 5, 2004

2004 N.Y. Slip Op. 50864 (N.Y. Misc. 2004)

Opinion

17791/01.

Decided August 5, 2004.

TROISI MARKOWITZ, P.C (ATTORNEYS FOR PLAINTIFF'S).

SUSSMAN SUSSMAN, P.C. (ATTORNEYS FOR DEFENDANT).

DAVID A. GROSS, J.

In this action for intentional infliction of emotional distress, conversion and trespass, the court includes the following facts at length in it's decision because only with a full disclosure of these terrifying and horrifying facts can the award granted below be justifed. Some time after interposing his answer and appearing for depositions the defendant defaulted and this inquest was ordered.

FINDINGS of FACT

In July 1998 Mr. and Mrs. Ahrens, along with their son M, 4 years old, and their daughter K, 2 years old, lived in the downstairs apartment of their two family home in the suburban village of Seaford in Nassau County. Young K had been born with a terribly disfiguring facial tumor that had to be treated with a series of surgical operations and her unfortunate condition was well known throughout the neighbor hood. Other than K's medical condition, however, the Ahrens were a warm and happy family.

Mr. and Mrs. Ahrens had rented the upstairs apartment to the defendant Frank Stalzer and his wife Michelle. The Stalzers had no children of their own. Although not "friends", the Ahrens and the Stalzers had an amicable landlord/tenant relationship that, as of July 1998, had continued for five consecutive years. Mrs. Ahrens recalled that they would say "hello" and "goodbye" to each other as they passed but they did not socialize any further than that during the period of the tenancy.

One day in that month the Ahrens informed the Stalzers that the Ahrens needed to incorporate the upstairs apartment into theirs to accommodate their growing children's needs and that the Stalzers were going to have to find another place to live. The Stalzers understood, acquiesced, and vacated the apartment several months later with no animosity or disagreement with the Ahrens.

Sometime in November of that year, just before Thanksgiving, Mrs. Ahrens received a telephone call from Mr. Stalzer. He told her that he needed to meet with her and speak with her privately. Uncomfortable with this request, Mrs. Ahrens politely demurred. Thinking this telephone conversation rather unusual, Mrs. Ahrens immediately telephoned her husband at work and told him what had happened. Soon thereafter Mr. Stalzer called again and repeated his request. Again Mrs. Ahrens denied him. Mr. Stalzer then asked that Mrs. Ahrens not mention his calls to either Mr. Ahrens or Mrs. Stalzer. Mrs. Ahrens responded by informing Mr. Stalzer that she kept no secrets from her husband and that, in fact, she had already told her husband of Mr. Stalzer's earlier call. Mrs. Ahrens again telephoned her husband and related to him the contents of this second call. Mr. Ahrens suggested that perhaps Mr. Stalzer was having some sort of difficulty with Mrs. Stalzer and was looking for another woman with whom he could discuss it. The Ahrens had no further discussion regarding Mr. Stalzers' calls.

In December of 1998, the Ahrens family mailed out holiday greetings to all of their family, friends and acquaintances, just as they had done in prior years. The greeting was of the type that told of what the family had accomplished during the year and their aspirations for the new year to come. One of the details the Ahrens' holiday greeting mentioned was of how the family was going to travel to Little Rock, Arkansas in January so that little K could have yet another surgical procedure on her face. Included on the Ahrens' mailing list was Mr. And Mrs. Stalzer at their new address.

On January 16, 1999 the Ahrens family flew out to Little Rock and, early on January 18, little K had her operation. Later that day K was discharged and she and her family embarked on their 8 hour trip home. They arrived home close to midnight on a cold and rainy night. As they approached the home, Mr. Ahrens carrying a sleeping M on his shoulder and Mrs. Ahrens carrying the heavily sedated and still bandaged little girl, they noticed the front door was slightly ajar. Mr. Ahrens turned on the lights and placed the boy, still sleeping, on the couch. As he looked around he saw that the house was in a shambles with water everywhere, ceilings collapsed, walls buckling and black spray painted graffiti scrawled on the walls. Fearing for his family's safety he grabbed up the boy and screamed to his wife "someone's in the house!" Mr. Ahrens escorted his wife and children to a neighbors' house, called the police and returned to his home. A more thorough search revealed that someone had plugged the drains in all the sinks and tubs and left the water on throughout the house. The water had seeped across the floors and cascaded down throughout the lower floors. Their fully finished basement had more than three feet of water and all of their belongings had either sunk or were floating about.

Any possibility that the Ahrens were a chance victim of this criminal mischief was quickly erased, however, once Mr. and Mrs. Ahrens and the investigating police officers literally read the handwriting on the wall. "[Mr. Ahrens] YOU THINK YOU CAN FUCK ME AND RUN AWAY YOU FUCKED THE WRONG GIRL", "[Mr. Ahrens] YOU TOLD ME YOU WEREN'T MARRIED", "SEE HOW YOUR WIFE LIKES THIS" and "[Mr. Ahrens] EXPLAIN THIS TO YOUR WIFE", were a clear indication to the police, at least, that Mr. Ahrens had been having an affair, that it had somehow ended badly and that a scorned ex-girlfriend was the culprit. Mr. Ahrens vehemently denied this theory and denied that he had ever had an affair. He did admit, however, that he could understand why someone, including the police and, more importantly, his own wife, viewing the evidence, might think otherwise.

If things weren't bad enough, Mrs. Ahren's inspection of her ruined home revealed that her dresser drawer had been opened and a certain bra and panties had been removed. To her further horror she discovered that, of her many photo albums she kept, the six that contained the pictures of her children from the time of their births to the time of their baptisms had been stolen! Mrs. Ahrens was absolutely traumatized.

The police interviewed Mr. Ahrens for hours at the police station. According to Mr. Ahrens, they were steadfast in their belief in their original theory. They questioned him, they challenged him, they played "Good cop, bad cop" threatening him with the possibility of criminal prosecution and, ultimately, they refused accept his denial and concluded their investigation by telling him that he would give them the name of his ex-mistress when he was ready.

In the weeks and months that followed, disbelieving her husband and fearing another attack Mrs. Ahrens and the children stayed at a neighbor's home. Mr. Ahrens did his best to clean up the house and stayed there, all the while protesting his innocence. Mr. Ahrens continued to ask the police for help, but, getting little from them, he took time off from work to try to investigate for himself. All to no avail.

Meanwhile, Mrs. Ahrens was mentally and emotionally wrecked. She trusted no one, was afraid to be by herself or leave her children, could not sleep and could not eat. Her home was in ruins, her marriage destroyed and her family life was gone. Under all this pressure she still had to take care of her ailing daughter and now distressed son. Mrs. Ahrens wisely sought the help of various physicians and therapists who prescribed for her a plethora of medications. Ultimately, however, her problems were caused by external forces and the failure by the police to apprehend the perpetrator continued to put pressure on Mrs. Ahren's mind.

In early April of 1998 Mr. Ahrens, obsessed with finding the real criminal and proving himself innocent, convinced the police to obtain the records of incoming calls to the Ahren's household on and around the date of the crime. The police finally acceded to his request and, low and behold, discovered that some 15 calls were placed to the Ahrens' home telephone on the day that the home was attacked. All fifteen calls originated from the new home of Mr. Stalzer! (Why the police had not previously made what seems to be a basic investigative inquiry earlier was not explained.)

With this information in hand Mr. Ahrens was able to convince Mrs. Ahrens that he had been telling the truth all along. Mrs. Ahrens and the children agreed to move back in to their home. All was far from resolved in the Ahrens household, however. Mrs. Ahrens distrust of Mr. Ahrens turned to guilt and Mr. Ahrens could not help resenting Mrs. Ahren's loss of faith in him. Mrs. Ahrens refused to be left alone at night causing Mr. Ahrens to pass on all opportunities to work overtime and on job promotions that would require him to travel. Little M developed a fear of strangers and was very uncomfortable with having anyone enter the home. The idea of a Santa Clause, Easter Bunny or Tooth Fairy coming to visit set the boy to tears and continues to this day.

While the evidence of the telephone calls was enough to convince the Ahrens of the identity of their attacker, they were told by the police that it was not enough to arrest Mr. Stalzer. Mr. And Mrs. Ahrens continued to badger the police for weeks and, finally, on April 18, 1999 the police relented and called Mr. Stalzer in for questioning. In front of the police Mr. Stalzer made a full confession.

Rather than paraphrase his words, the confession was word for word as follows:

On 01-16-99 at about 5:30 P.M. I started making telephone calls to [Mrs. Ahren's] home. I called her home telephone number [DELETED] from about 5:50 p.m. to about 2:00 a.m. on the seventeenth of Jan. 1999. I called and knew that [Mr. and Mrs. Ahrens] were not home. After I called from my home [DELETED] I left my home over to [the Ahrens'] home [DELETED]. I know the address because I lived there in the upstairs apartment with my wife for five years. I got out of my car and parked my car a block away and walked over to [Mrs. Ahren's] house. I used a screw driver to pry open the sliding (sic) glass door leading into the upstairs bedroom. I walked into the bedroom and went to the dresser drawer and took out a few panties and bras. I then went over to the bed, lifted the mattress and took a shit on the [box spring]. I then cleaned my ass with the panties and bras and put them on the [box spring] and put the mattress back. From there I went down to the basement and got some spray paint from behind the boiler. I went back upstairs and began to spray paint the upstairs walls. In the bedroom I wrote on the walls: "[Mr. Ahrens] EXPLAIN THIS TO YOUR WIFE . . . YOU THINK YOU CAN FUCK ME AND GET AWAY WITH THIS." On the out side hall wall I wrote in black spray paint "[Mr. Ahrens] YOU TOLD ME YOU WEREN'T MARRIED". After spraying the walls in that black spray paint I went down stairs and looked for some family photo albums. I looked around and found five to six albums in the cabinet near the T.V. in the living room. I took the albums and put them near the door on the floor. I then went up stairs and put on the water in the up stairs bathroom which is between two bedrooms. I went down stairs and put the water on in the main floor bathroom and kitchen. I just left the water running, I was just pissed off, I liked her a lot. I just wanted to be with her. After leaving all the water running in the house I picked up the photo albums and walked out of the front door and shut the door behind me. I walked to my car that I parked a block away and I went home. Out of five or six photo albums I took I only have two albums left. I only wanted pictures of [Mrs. Ahrens], I really liked her. Right now I have one photo album at my house and another at my job in Valley Stream. . . .

Frank Stalzer was charged with Criminal Mischief and Petit Larceny, an E Felony and an A Misdemeanor, respectively. On January 19, 2009 Frank Stalzer pled guilty to both counts and was subsequently sentenced to six months in the Nassau County Correctional Facility. Four months later he was released and, presently lives a few short miles from the home of the Ahrens family.

At the inquest Mr. Ahrens explained that he would be only to happy to pack up and move from the state but that Mrs. Ahrens feels that if they move they would loose the benefit of having neighbors that would recognize Mr. Stalzer and would report his presence in the neighborhood to them. Mrs. Ahrens still suffers, now five years after the attack, from severe emotional distress and broke down crying several times during the inquest. Mr. Ahrens tried to remain stalwart throughout the hearing, however it was clearly apparent that he too had been severely emotionally affected by their experience.

This court finds that the Ahrens family has suffered and continues to suffer through nothing short of a nightmare. Reminiscent of the movie "Cape Fear" there is no amount of money that will ever make this family whole.

Frank Stalzer evidently thought long and hard to come up with exactly the right words and the best way to terrorize and permanently traumatize and tear apart this family. If ever there was a case that warranted sanctions for willful wanton or malicious behavior this is that case.

Based on the facts set forth above, Plaintiffs Edward and Lori Ahrens seek: compensatory damages and/or exemplary damages for the intentional infliction of emotional distress: compensatory and/or punitive damages for conversion of the photo albums; and/or compensatory and/or punitive damages for trespass. In addition, plaintiff Edward Ahrens seeks compensatory damages for loss of consortium. POINT I

PLAINTIFFS EDWARD AND LORI AHRENS ARE ENTITLED TO COMPENSATORY DAMAGES AND PUNITIVE DAMAGES FOR THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The law is well established that a tortfeasor may be liable for the intentional infliction of emotional distress. In Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991 (1978), the Court of Appeals adopted the formulation of the Restatement (Second) of Torts as to the standard for establishing a cause of action for intentional infliction of emotional distress. In Fischer, the Court of Appeals held that "[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress." Id. at 557, 402 N.Y.S.2d at 991 (quoting Prosser, Torts [4th ed], § 46, subd [1]). Moreover, the "existence of severe emotional distress and proximate cause may be inferred therefore without expert medical opinion where . . . plaintiff has testified as to her emotional condition for which she sought medical and psychiatric attention." Id.

In addition to compensatory damages, punitive damages are recoverable in an action seeking damages for the intentional infliction of emotional distress if the tortious act "is morally culpable, or is actuated by evil and reprehensible motives, not only to punish the defendant but to deter him, as well as others who might otherwise be so prompted, from indulging in similar conduct in the future." Walker v. Sheldon, 10 N.Y.2d 401, 223 N.Y.S.2d 488 (1961); See also Collins v. Willcox Incorp., 158 Misc.2d 54, 600 N.Y.S.2d 884 (N.Y.Sup.Ct. Oct 01, 1992). "An award of punitive damages must be based on `quasi criminal conduct or of such utterly reckless behavior' or a demonstrated `malicious intent' to injure the plaintiff, or gross, wanton or willful fraud or other morally culpable conduct." Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 559 N.Y.S.2d 336 (2d Dep't 1990) (quoting Maitrejean v. Levor Prof. Corp., 87 A.D.2d 605, 606, 448 N.Y.S.2d 46 (2d Dep't 1982)).

Several factors may be considered in determining the amount of punitive damages. As the Court stated in Deborah S. v. Diorio, 153 Misc.2d 708, 716, 583 N.Y.S.2d 872, 878 (N.Y.City Civ.Ct. Feb 18, 1992), aff'd, 160 Misc.2d 210, 612 N.Y.S.2d 542 (N.Y.Sup. App. Term Feb 17, 1994):

In determining the amount of punitive damages, the trier of fact may properly consider all the facts and circumstances immediately connected with the incident tending to exhibit or explain: defendant's motive; the existence or absence of malice or intentional disregard for plaintiff's rights or reckless indifference thereto, the nature, quality and duration of harm inflicted upon plaintiff, defendant's financial wealth or assets and the degree of deterrent resulting from a punitive award.

Id. (citing Le Mistral v. CBS, 61 A.D.2d 491, 494-495, 402 N.Y.S.2d 815; Levine v. Abergel, 127 A.D.2d 822, 825, 512 N.Y.S.2d 218; Restatement 2d of Torts 908, Comment [e].)

An award of punitive damages does not have to have any relationship to an award for compensatory damages. In Toomey v. Farley, 2 N.Y.2d 71, 83, 156 N.Y.S.2d 840, 138 N.E.2d 221 (1956), the Court of Appeals let stand a $5,000.00 punitive damages award where the compensatory damage award was only six cents (6). See also Merritt v. Ramos, 167 Misc.2d 269, 639 N.Y.S.2d 643) (Civ.Ct., Kings County 1995) (compensatory damages awarded in the amount of $250.00 and punitive damages awarded in the amount of $10,000.00).

The case of Deborah S. v. Diorio, 153 Misc.2d 708, 583 N.Y.S.2d 872 (N.Y.City Civ.Ct. Feb 18, 1992), aff'd, 160 Misc.2d 210, 612 N.Y.S.2d 542 (N.Y.Sup. App. Term Feb 17, 1994) is instructive when considering the case at bar. In Diorio, the plaintiff brought an action seeking to recover compensatory and punitive damages for injuries sustained as a result of "acquaintance rape." The defendant was found liable for the intentional infliction of emotional distress, which was held to be the predicate for compensatory and punitive damages.

The Diorio Court held that compensatory damages for the intentional infliction of emotional distress "include compensation for the injury itself, conscious pain and suffering including mental and emotional anxiety which can be based on the plaintiff's subjective testimony plus special damages, which need not be pleaded". Id. at 715, 583 N.Y.S.2d at 878. (citing Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 559 N.Y.S.2d 336 (2d Dep't 1990); De La Cruz v. City of New York, 163 A.D.2d 163, 557 N.Y.S.2d 381 (1st Dep't 1990)). In determining the amount of compensatory damages to be awarded to the plaintiff, the Court noted that numerous factors had to be considered:

The social and emotional betrayal and humiliation, the isolation, the threat and violation to her self-esteem, physical, psychic and emotional integrity and health, the fear for her life, the utter sense of hopelessness and helplessness, loss of income and therapeutic and medical expenses are among the many factors, this Court must consider and evaluate in assessing compensatory damages for the incident and a reasonable time thereafter.

Id. at 715, 583 N.Y.S.2d at 878.

In the Diorio case, decided in 1992, the Court found that the plaintiff was entitled to $100,000.00 in compensatory damage for the pain and suffering she endured as a result of an acquaintance rape.

In awarding punitive damages, the court in Diorio held that the fact that the defendant's conduct was the basis for criminal convictions satisfied the requirement that, in order for punitive damages to be awarded, the defendant's actions be quasi-criminal or utterly reckless. Moreover, the Court noted that the defendant's criminal conviction and "sudden Dr. Jekyll-Mr. Hyde transformation upon being sexually rebuffed from a gentle person to a raging animal showed utter reckless behavior." These factors, as well as others, led the Court to conclude that the facts presented "warrant[ed] civil punishment through punitive damages" and "to serve as a warning to others'" and "`as punishment for gross misbehavior for the good of the public.'" Id. at 715, 583 N.Y.S.2d at 878 (quoting Toomey v. Farley, 2 N.Y.2d 71, 83, 156 N.Y.S.2d 840, 138 N.E.2d 221 (1956)). Accordingly, the Court imposed punitive damages in the amount of $200,000.00.

In the instant action, plaintiffs testified as to the extreme "conscious pain and suffering including mental and emotional anxiety" that they suffered as a result of defendant Stalzer's actions. Plaintiffs knew defendant Stalzer personally, and felt close enough to him to send him a Christmas card. Defendant Stalzer used the information he received in this Christmas card to determine when plaintiffs would be away from their home for the surgery of their daughter and, during such time, entered their home and intentionally and maliciously committed the deviant and destructive acts detailed above. These malicious actions made it unsafe for Ahrens to return to her home after she had surgery to remove a facial tumor. As detailed above, as a result of these actions, it was believed that plaintiff Edward Andrews was having an extra-marital affair. Moreover, since defendant Stalzer hid his involvement in this incident for over three months, plaintiffs were caused to suspect that one of their neighbors or friends, who knew that plaintiffs had traveled to Arkansas, had been responsible for this incident. This damaged and destroyed plaintiffs' relationship with some of their friends and neighbors. While the damage defendant Stalzer caused was being repaired, plaintiff Edward Ahrens was forced to live apart from his wife, plaintiff Lori Ahrens, and daughter, who was recovering from surgery, for over six (6) weeks. Further, as a direct result of defendant Stalzer's actions, and the fear that he caused, when plaintiff Lori Ahrens was able to return to her home (approximately six (6) weeks after the incident), she was unable to go anywhere by herself and her father-in-law had to accompany her almost everywhere she went for three (3) weeks. Certainly this is the type of "social and emotional betrayal and humiliation", "isolation", "threat and violation to . . . self-esteem" and fear that the Diorio Court dictated should be in assessing a compensatory damage award.

The damage that defendant Stalzer caused was not remedied when he was arrested or when the plaintiffs' home was repaired. The damage continues to date and will continue indefinitely. The friendships that were lost or damaged as a result of the suspicions caused by defendant Stalzer's actions can never be repaired or replaced. The photo albums, containing photographs of plaintiffs' children in the delivery room, coming home from the hospital, having birthday parties as well as other landmark events in their lives, which defendant Stalzer intentionally destroyed, can never be recovered or replaced. The loss of security that the plaintiff have been forced to endure every time they leave their home will continue for the rest of their lives.

Since defendant Stalzer's intentional, malicious conduct was so egregious and extreme, there are few reported cases involving similar circumstances. However, there are a few cases which may set forth a starting point for the award which plaintiffs deserve.

In Diorio, discussed at length above, the plaintiff was awarded $100,000.00 in compensatory damages for the pain and suffering she suffered as a result of the intentional infliction of emotional distress caused by defendant. This case was decided over ten (10) years ago.

In Murphy v. Murphy, 109 A.D.2d 965, 486 N.Y.S.2d 457 (3d Dep't 1985), the plaintiff brought an action against a person with whom she had been living. As the relationship ended, the defendant removed all of plaintiff's possessions from their home (which plaintiff later returned), smashed windows in their home, threatened plaintiff, assaulted plaintiff, destroyed plaintiff's belongings and killed plaintiff's pet goose. It was determined that defendant's actions constituted the intentional infliction of emotional distress and, on appeal, in 1985, plaintiff was awarded $45,000.00 in compensatory damages.

In the instant action, the damages suffered by plaintiffs were at least as extreme as the plaintiffs in Diorio and Murphy. As in Diorio and/or Murphy, the plaintiffs in the instant action endured violations of their sense of security and the destruction of their property and the actions which resulted in the death of a pet. The defendants in Diorio and Murphy were not intentionally caused to believe that their spouse was having an extra-martial affair. In the instant action, many months passed before the plaintiffs learned who committed these heinous acts. Therefore, as detailed below, they lost and damaged several friendships. Moreover, defendant Stalzer intentionally caused plaintiff Lori Ahrens to suspect that her husband, plaintiff Edward Ahrens, was having an extra-marital affair. Most importantly, all of this occurred while the plaintiffs were attempting to help their daughter recover from surgery.

Admittedly, no amount of money could truly compensate Mr. and Mrs. Ahrens for the irreparable harm that defendant Stalzer has caused. However, the only relief this Court can afford to plaintiffs is monetary. Accordingly, it is requested that the monetary relief provided be sizeable.

The $100,000.00 compensatory damage award set forth in Diorio, decided over a decade ago, and the $45,000.00 compensatory damage award set forth in Murphy, decided over almost twenty (20) years ago, provide a starting point for the damages sought herein. Certainly the damage that plaintiffs have suffered and continue to suffer in the instant action were of, at least, an equal nature to that of the plaintiffs in Diorio and Murphy. However, it must be remembered that the awards in the cases set forth above were made ten (10) and twenty (20) years ago. Accordingly, the dollar values set forth therein are not indicative of what plaintiffs would be entitled to in 2004. Based on the severity of the damage intentionally and maliciously caused by defendant Stalzer, plaintiffs are awarded one million ($1,000,000) dollars in compensatory damages for the intentional infliction of emotional distress.

As set forth above, plaintiffs are entitled to punitive damages, as well as compensatory damages, where the actions are "quasi-criminal" in nature. Here, as in Diorio, the defendant was convicted on criminal charges for the actions giving rise to the instant suit. Accordingly, the "quasi-criminal" standard is clearly met. Therefore, the issue that remains is the amount of punitive damages that should be awarded.

As set forth above, in determining the amount of punitive damages, the factors that may properly be considered include, but are not limited to, the defendant's motive, the malice or intentional disregard for plaintiff's rights, and the nature, quality and duration of harm inflicted upon plaintiffs. In Diorio, as in the instant case, the defendant went from being a friend or acquaintance of the plaintiff to a predator, undergoing a "Dr. Jekyll-Mr. Hyde transformation" simply because the plaintiff rejected his sexual advances. Thus, in both actions, defendant's motive was the same: revenge because plaintiff would not give him what he wanted, to wit, a sexual relationship. In Diorio, as in the instant action, the defendant's behavior resulted in the criminal conviction of the defendant. In Diorio, as in the instant action, the defendant was motivated solely by malice. The extent of defendant Stelzer's malice is reflected by the fact that he intentionally closed the sink drains and stuffed toilet paper into the sinks and over flow holes after turning the faucets on full blast, in order to inflict the maximum amount of damage. Defendant Stelzer admitted that he committed these atrocious acts simply because he was "pissed off", "liked [plaintiff Lori Ahrens] a lot [and] just wanted to be with her."

Based upon defendant's unspeakable behavior, plaintiffs were violated and abused. In addition, in the instant action defendant's actions: destroyed plaintiffs' home, making it unsafe for Kimberly Ahrens to return to her home after she had just undergone surgery to remove a facial tumor; attempted to convince plaintiff LORI AHRENS and the police that plaintiff EDWARD AHRENS had a girlfriend and was having an extra-marital affair; destroyed some of plaintiffs' family photo albums which can never be replaced or duplicated; urinated and defecated on plaintiff LORI AHRENS' underwear, and placed that underwear beneath plaintiffs' mattress; prevented plaintiff LORI AHRENS and her children from being able to live in their home for approximately six (6) weeks; and caused plaintiffs to suspect that one of the neighbors or friends, who knew that plaintiffs had traveled to Arkansas, had been responsible for this incident. This damaged and destroyed plaintiffs' relationships with some of their friends and neighbors. In light of the intentional, malicious and egregious conduct of defendant, all of which was completely unprovoked, plaintiffs are awarded three million ($3,000,000) dollars in punitive damages.

A review of decisions in some defamation actions is useful by way of analogy. It is axiomatic that some types of statements are considered so damaging to a person's reputation that they are considered slander or libel per se and a plaintiff need not prove special damages to set forth a valid cause of action. One such type of statement is that which charges a person with the crime of adultery. Jordan v. Lewis, 20 A.D.2d 773, 774, 247 N.Y.S.2d 650, 651 (1 st Dep't 1964).

Defamation cases have awarded far greater amounts to the plaintiffs where the conduct was less egregious and the damages less substantial. For example, in Grieco v. Glasso, 297 A.D.2d 659, 747 N.Y.S.2d 120 (2d Dep't 2002) the plaintiff brought a defamation action against the declarant, with whom the plaintiff's former wife resided. The action alleged that the defendant affixed billboard style signs to his vehicle stating that the plaintiff earned "nearly $700,0000 in this community yet refused to pay child support." Id. at 660, 747 N.Y.S.2d at 120. On appeal the Court affirmed the jury's finding of liability and the Court's determination that the plaintiff was entitled to $35,000.00 in compensatory damages and $100,000.00 in punitive damages.

In O'Neil v. Peekskill Faculty Ass'n, 156 A.D.2d 514, 549 N.Y.S.2d 41 (2d Dep't 1989), the plaintiff, a school district's chief negotiator, brought a libel action against the faculty association alleging that it had issued a press release falsely accusing the plaintiff of uttering a racial slur. After a jury found the defendant liable. The Appellate Division held that the plaintiff was entitled to $130,000.00 for compensatory damages and $300,000.00 for punitive damages.

In Morsette v. "The Final Call", 309 A.D.2d 249, 764 N.Y.S.2d 416 (1st Dep't 2003), the plaintiff was the mother of a young boy and a successful businesswoman. The defendant, a weekly newspaper of the Nation of Islam, published an article about mothers in prison. Along with the article is a picture of three women holding two children. One of the women was the plaintiff holding her son. Another photograph which accompanied the article was of the plaintiff and was edited to make it appear that the plaintiff was wearing prison attire. At trial, it was established that the plaintiff had never been imprisoned and that the defendant chose the photograph at random from a "photo file" to use in connection with the article. The newspaper later printed a clarification stating that the photograph was for illustration only. However, the clarification referred to the wrong edition of the newspaper. The Appellate Division affirmed the jury's award of $40,000.00 for presumed harm to reputation and $100,000.00 for four years of emotional distress suffered prior to trial. In addition, the Appellate Division found that evidence existed to support of award of $300,000.00 for future emotional distress.

POINT II

PLAINTIFFS EDWARD AND LORI AHRENS ARE ENTITLED TO ONE HUNDRED THOUSAND DOLLARS IN COMPENSATORY AND PUNITIVE FOR CONVERSION OF THE PHOTO ALBUMS

As set forth above, defendant Stalzer admitted that he converted six family photo albums from plaintiffs and intentionally destroyed four (4) of these albums. These photo albums contained photographs of plaintiffs' children in the delivery room, coming home from the hospital, having birthday parties as well as other landmark events in their lives. The lost photo albums can never be replaced or duplicated. The sole reason defendant Stalzer gave for taking the albums was that he "wanted pictures" of plaintiff Lori Ahrens.

Plaintiffs concede that the measure of compensatory damages for the loss of plaintiffs' photograph albums is the value to the plaintiff, taking into consideration the cost of the picture lost, the probability of replacing it, etc. No award for sentimental value can be made.

However, plaintiffs are entitled to punitive and/or exemplary damages for the intentional conversion of the photo albums. NY PJI Supplement, Volume 2, 3:10, Pg 97 (2001); Fraser v. Doubleday Co., Inc, 587 F. Supp. 1284 (S.D.N.Y. 1984); Ashare v. Mirkin, Barre, Saltzstein Gordon, 106 Misc.2d 866, 435 N.Y.S.2d 438 (Sup.Ct. Suffolk Co. Sept 29, 1980); Manekas v. Allied Discount Co., 6 Misc.2d 1079, 166 N.Y.S.2d 366 (Sup.Ct. Kings Co. July 8, 1957);

In Manekas, the Court held: Where there has been a wrongful and willful taking or detention of property coupled with a malicious intention to deprive a party of his interest in the property, the plaintiff may not only recover actual damages sustained for conversion but, in addition, exemplary damages. The purpose of an award for punitive or exemplary damages is not only to compensate for harm suffered by a plaintiff, but it may reflect punishment of the wrongdoer for the past event. It is also intended to deter a tort-feasor from a repetition of the wrongful act.

Manekas, 6 Misc.2d at 1080, 166 N.Y.S.2d at 369.

As set forth above, an award of punitive damages does not have to have any relationship to an award for compensatory damages. Toomey v. Farley, 2 N.Y.2d 71, 83, 156 N.Y.S.2d 840, 138 N.E.2d 221 (1956); Merritt v. Ramos, 167 Misc.2d 269, 639 N.Y.S.2d 643) (Civ.Ct., Kings County 1995). In fact, punitive damages maybe awarded when only nominal damage is shown. NY PJI Supplement, Volume 2, 3:10, Pg 97 (2001) (citing Silverstein v. Marine Midland Turs Co., 1 A.D.2d 1037, 152 N.Y.S.2d 30). Accordingly, this Court could award punitive or exemplary damages for the conversion of the photo albums which far exceed the compensatory damages award.

In the instant action, defendant Stalzer admitted that he intentionally and wrongfully took and destroyed plaintiffs' photo albums, solely because he wanted pictures of plaintiff Lori Ahrens. As set forth above, the photo albums contained photographs of plaintiffs' children in the delivery room, coming home from the hospital, having birthday parties as well as other landmark events in plaintiffs' lives. Because of defendant Stalzer's intentional and malicious actions, plaintiffs can never look back at the pictures of the landmark events in their lives. Defendant Stalzer has, without rhyme or reason, destroyed the only recorded recollection of many of the most important memories in plaintiffs' lives. Without question, defendant Stalzer should be severely punished for these actions. In addition, the punitive damages imposed should ensure that defendant Stalzer never exhibits this atrocious behavior in the future. The punitive damage award should also serve as a deterrent to others. Finally, as set forth in Manekas, the punitive damages award should compensate plaintiffs for the harm they suffered. Accordingly, plaintiffs are awarded one hundred thousand ($100,000) dollars in punitive and/or exemplary damages for conversion of the photo albums.

POINT III

PLAINTIFFS EDWARD AND LORI AHRENS ARE ENTITLED TO FIFTY THOUSAND DOLLARS IN COMPENSATORY DAMAGES AND/OR PUNITIVE DAMAGES FOR TRESPASS

Compensatory damages may be awarded in an action for trespass if the trier of fact concludes that the defendant intentionally entered upon the plaintiff's land and wrongly used it without justification or consent. Chlystun v. Kent, II, 185 A.D.2d 525, 586 N.Y.S.2d 410 (3d Dep't 1992). Punitive damages may be awarded in an action for trespass:

Punitive damages may be awarded in an action for trespass as a penalty to the trespasser and as a warning to others where the alleged conduct shows malice, a flagrant interference with the plaintiff's right to possession or other aggravating circumstances. Any punitive damage award should be reasonably related to the harm done and the flagrancy of the conduct which caused the harm.

Id. At 527, 586 N.Y.S.2d at 412 (citations omitted); See also Le Mistral v. Columbia Broadcasting System, 61 A.D.2d 491, 402 N.Y.S.2d 815 (1st Dep't 1978).

In the instant action, there is no question that defendant Stalzer entered the plaintiffs' land and wrongly used it without consent. As set forth in detail above, defendant Stalzer entered plaintiffs home and spray painted profanity on the plaintiffs' walls and urinated and defecated on plaintiffs' bed. Moreover, defendant Stalzer intentionally flooded plaintiffs' home, stopping the drains and overflow holes to maximize the damage caused, all of which made it inhabitable by the family for six (6) weeks and which caused the death of plaintiffs' pet cat. This six (6) week period was the time during which plaintiffs' daughter Kimberly was recovering from surgery to remove a facial tumor; a fact which defendant Stalzer was well aware.

Moreover, since defendant Stalzer lived upstairs in plaintiffs' home for several years, he knew of the extensive work plaintiffs put into their home. As plaintiffs testified, every year that defendant Stalzer was living upstairs, plaintiffs would renovate a room in their home, gutting it down to the bare studs and rebuilding it themselves. Defendant Stalzer knew that the plaintiffs worked hard and saved for a long time to be able to afford the work on their home. Nevertheless, defendant Stalzer maliciously, and without provocation, destroyed the work plaintiffs had done, causing over $65,000.00 in damage.

Defendant Stalzer's actions leave no question that the trespass was done maliciously, and with extreme disregard to the plaintiffs' right to possession. Accordingly, plaintiffs are entitled to punitive and compensatory damages.

Admittedly, no amount of money can even begin to compensate plaintiffs for the irreparable harm that defendant Stalzer has caused. However, here again, the only relief this Court can afford the plaintiffs is monetary. Accordingly, plaintiffs' are awarded fifty thousand ($50,000) dollars in compensatory damages and/or punitive damages for defendant Stalzer's intentional and malicious trespass.

POINT IV

PLAINTIFF EDWARD AHRENS IS ENTITLED TO FIVE HUNDRED THOUSAND DOLLARS IN COMPENSATORY DAMAGES FOR LOSS OF CONSORTIUM

It is well established that a plaintiff is entitled to compensatory damages for loss of consortium. A loss of consortium claim embraces loss of services and support, love, companionship, affection, society and sexual relations. Nelson v. State, 105 Misc d107, 431 NYS2d 955 (1980)

As set forth in detail above, defendant Stalzer spray painted offensive and false statements throughout plaintiffs' home with the specific intent of damaging same and causing plaintiff Lori Ahrens to believe that plaintiff Edward Ahrens was having an extra-marital affair. The statements defendant Stalzer spray painted on the wall included: "You think you can fuck me and walk away you fucked the wrong girl"; "See how your wife likes this"; "Ed explain this to your wife"; and "Ed you told me you weren't married."

As plaintiffs testified, these statements caused plaintiff Lori Ahrens to believe that plaintiff Edward Ahrens was having an extra-marital affair. Naturally, this had a disastrous effect on plaintiffs' marriage and resulted in a loss of love, support, services, companionship, affection society and sexual relations to plaintiff Edward Ahrens. In addition, as set forth above, plaintiff Lori Ahrens and plaintiff Edward Ahrens were forced to live separate and apart for six (6) weeks while their home was being repaired. All of this resulted in a loss of consortium to plaintiff Edward Ahrens.

Here again, no amount of money can truly compensate plaintiff Edward Ahrens for the irreparable harm that defendant Stalzer has caused. Therefore, plaintiff Edward Ahrens' respectfully requests that he be awarded five hundred thousand (500,000) dollars in compensatory damages for loss of consortium.

CONCLUSION

For reason set forth above, plaintiffs are awarded: based on the facts set forth above, Plaintiffs Edward and Lori Ahrens are awarded: One Million ($1,000,000) Dollars in compensatory damages and Three Million ($3,000,000) Dollars in punitive damages for the intentional infliction of emotional distress; One Hundred Thousand ($100,000) Dollars in compensatory and punitive damages for conversion of the photo albums, and Fifty Thousand ($50,000) Dollars in compensatory and punitive damages for trespass. In addition, plaintiff Edward Ahrens is awarded Five Hundred Thousand ($500,000) Dollars in compensatory damages for loss of consortium.

This constitutes the decision and order of this Court.

So ordered: