Preview
FILED: RICHMOND COUNTY CLERK 08/15/2018 08:23 PM INDEX NO. 151767/2016
NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 08/15/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
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SVETA COOLTSCHINSKI AFFIRMATION IN
OPPOSITION
Plaintiff,
Index No.: 151767/2016
-against-
VADIM EPSTEIN A/K/A VADIM EPSHTEYN;
IRINA EPSHTEYN A/K/A IRINA EPSTEIN,
Defendants.
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MICHAEL J.S. PONTONE, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, pursuant to CPLR §2106, duly affirms the truth of the following:
1. I am the managing partner of THE LAW OFFICES OF MICHAEL J.S. PONTONE,
ESQ., P.C., the attorneys for the Plaintiff herein, and as such am fully familiar with the facts and
circumstances surrounding this action.
2. This Affirmation is submitted in support of Plaintiff’s opposition to Defendant’s
cross motion demonstrating Plaintiff’s claim for emotional harm is not improper nor therefore
frivolous, seeking to deny Defendant’s cross motion in its entirety, and for such other and further
relief as this court deems just and proper.
ANALYSIS
Plaintiff Can Demonstrate The Act And Presence Of Emotional Distress.
3. The tort 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. The first element — outrageous conduct — serves the dual function of filtering out petty
and trivial complaints that do not belong in court, and assuring that plaintiff's claim of severe
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emotional distress is genuine (see, Prosser, Insult and Outrage, 44 Cal L Rev, at 44-45; compare,
Mitchell v Rochester Ry Co., 151 NY, at 110).
4. In practice, courts have tended to focus on the outrageousness element, the one
most susceptible to determination as a matter of law (see, Restatement [Second] of Torts § 46,
comment h; Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness:
Intentional Infliction of Emotional Distress by Outrageous Conduct ["Social Decency"], 82
Colum L Rev 42, 42-43 [1982]).
5. "`Liability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community'" (Murphy, 58 NY2d, at
303, quoting Restatement [Second] of Torts § 46, comment d).
6. The Second Restatement of Torts reads: "One who by extreme and outrageous
conduct intentionally or recklessly causes severe emotional distress to another is subject to
liability for such emotional distress" (Restatement [Second] of Torts § 46 [1] [1965]).
7. The act of selling, destroying, and/or disposing of Plaintiff’s property and family
heirlooms, refusing to speak with the Plaintiff when she attempted to collect her belongings, and
blatantly disregarding Plaintiff’s visible distress when she arrived at her home to find her
possessions being removed surely constitutes and as extreme and outrageous.
9. Specifically, on October 10, 2016, the Plaintiff was driving in Brooklyn when she
received a call from Sam who informed her that he had passed by Plaintiff’s Home and that he
saw the bedroom set was being removed, among other property. Sam stated, “I think your
property is being taken out of the house.” Plaintiff raced to the house to see what was going on.
The Plaintiff immediately started driving towards Plaintiff’s Home and calling and texting
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Defendant Vadim Epstein to see what was going on. Defendant Vadim Epstein responded back
multiple times saying that he could not talk.
10. Plaintiff arrived at her home at approximately 10:30 am to find that Plaintiff’s
Property was being loaded into moving trucks. Plaintiff entered the home where Defendant
Vadim Epstein was directing the movers. There was no piano was in the living room and a
substantial portion of her property had already been removed.
11. Defendant Vadim Epstein said that Plaintiff was trespassing and had to leave the
premises. Defendant Vadim Epstein refused to answer any questions about where the rest of
Plaintiff’s Property was or where the property being loaded into moving vans was being taken.
At the time, Plaintiff suffered an acute emotional breakdown and panic attack at the prospect of
all her possessions being stolen. The movers stopped moving Plaintiff’s Property but were
immediately directed to continue by Defendant Vadim Epstein, and they did. Defendant stated
that Plaintiff could not contact him any longer. Later that afternoon, Defendant Vadim Epstein
said that she would be able to retrieve her property later.
12. Plaintiff continually attempted to retrieve her belongings by contacting the
Defendant Vadim Epstein. Approximately one month later, after multiple texts and phone calls,
Defendant Vadim Epstein responded that what remained of Plaintiff’s Property could be found in
the driveway of Plaintiff's Home. The Plaintiff raced to Plaintiff's Home to find that the only
thing put on the lawn were two boxes and a shopping bag filled with old papers and documents
that were valueless.
13. All of Plaintiff's Personal Property, including family heirlooms, clothes,
mementos, paintings made by her daughter, baby photos, and the valuable property listed in
paragraph six, supra, is missing and unaccounted for.
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14. There are plenty of alternative, civil options Defendant could have opted for to
have the Subject Premises cleared of Plaintiff’s belongings, most simply, allowing the Plaintiff
to collect her things as she attempted to do so on numerous occasions.
15. As said actions of the Defendant were the direct cause of Plaintiff’s emotional
distress, it at least raises the question of intentional infliction of emotional harm.
16. Plaintiff’s mental health has continued to deteriorate following the devastating
actions of the Defendant which in turn has significantly elevated her stress levels and in turn
deteriorated her physical health.
17. There are a plethora of scholarly, psychological studies that clearly demonstrated
a direct correlation between psychological well-being and physical health.
18. The American Psychological Association (APA) reported that negative emotions
correlate with deficits in a person’s physical well-being. Specifically, in terms of stress, chronic
stress can wear down the body over time, but even short-lived spurts of minor stress can have an
impact on a person’s well-being.
19. As a result of the extreme stress at the hands of the Defendant, Plaintiff has
suffered and will continue to suffer numerous medical conditions which have been documented
and directly liked to this instant action.
20. See annexed hereto as Exhibit A a letter from Nicole Arcentales, D.O written on
behalf of Plaintiff outlining her medical conditions that were likely related to stress caused by
this instant action.
21. See annexed hereto as Exhibit B, a letter from Miroslawa Kudej, M.D. stating
that the Plaintiff’s hormonal imbalance may be a result and exacerbated by extreme stress.
22. These medical professional’s letters evaluate and identify Plaintiff’s medical
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conditions as a result of the stress and mental and emotional distress which are directly caused by
the Defendant.
Defendant’s Allegation of Frivolous Claim Has No Merit
23. Defendant’s assertion that Plaintiff’s claim for emotional harm is improper and
therefore frivolous is in and of itself frivolous. Additionally, Defendant offers no evidence or
explanation as to why such claim such would be constituted as frivolous.
24. As demonstrated supra, the Plaintiff has undoubtedly suffered emotional harm at the
hands of the Defendant and has suffered and continues to suffer the affects negatively both mentally
and physically.
25. CPLR 8303(c) states, “In order to find the action, claim, counterclaim, defense or
cross claim to be frivolous under subdivision (a) of this section, the court must find one or more
of the following…(ii) the action, claim, counterclaim, defense or cross claim was commenced or
continued in bad faith without any reasonable basis in law or fact and could not be supported by
a good faith argument for an extension, modification or reversal of existing law.”
26. Plaintiff’s claim for emotional harm does not fall within any of these sections and
has been litigated and supported by factual evidence and relevant literature. Therefore, the Court
should see that Defendant’s claim has no grounds.
27. In the case of Gloria McGill et al. v. Peggy Parker et al., the Defendants failed to
demonstrate a frivolous action as none of Plaintiffs' causes were so blatantly meritless as to
justify sanctions. Nor could it be said that Plaintiffs' lawsuit resulted in an improper use of the
court's time. As a result, the IAS court denied the motions, noting, "[A]ssuming the allegations
set forth [in the complaint] to be true * * * plaintiffs have stated viable causes of action against
the 105*105defendants." McGill v. Parker, 179 AD 2d 98 - NY: Appellate Div., 1st Dept. 1992.
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28. Furthermore, in the case of Accent Collections, Inc. v. Cappelli Enterprises, Inc.,
the Supreme Court “providently denied that branch of the plaintiff's motion which sought costs
and attorneys' fees, as the plaintiff failed to demonstrate that the defendants' conduct was
frivolous (see 22 NYCRR 130-1.1 [c])”. Accent Collections, Inc. v. Cappelli Enterprises, Inc., 84
AD 3d 1283 - NY: Appellate Div., 2nd Dept. 2011
29. WHEREFORE, it is respectfully requested that Plaintiff’s motion be granted in its
entirety.
Dated: August 15, 2018
Brooklyn, New York
__________________________________
Michael J.S. Pontone, Esq.
THE LAW OFFICES OF
MICHAEL J. S. PONTONE, ESQ., P.C.
Attorneys for Plaintiff
SVETA COOLTSCHINSKI
532 Union Street
Brooklyn, New York 11215
917-648-8784
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NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 08/15/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
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SVETA COOLTSCHINSKI Index No.: 151767/2016
Plaintiff,
-against-
VADIM EPSTEIN A/K/A VADIM EPSHTEYN;
IRINA EPSHTEYN A/K/A IRINA EPSTEIN,
Defendants.
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AFFIRMATION IN OPPOSITION
LAW OFFICES OF MICHAEL J. S. PONTONE, ESQ., P.C.
ATTORNEYS FOR PLAINTIFF
SVETA COOLTSCHINSKI
532 UNION STREET
BROOKLYN, NEW YORK 11215
917-648-8784
7 of 7
Preview
FILED: RICHMOND COUNTY CLERK 08/15/2018 08:23 PM INDEX NO. 151767/2016 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 08/15/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ---------------------------------------------------------------------------X SVETA COOLTSCHINSKI AFFIRMATION IN OPPOSITION Plaintiff, Index No.: 151767/2016 -against- VADIM EPSTEIN A/K/A VADIM EPSHTEYN; IRINA EPSHTEYN A/K/A IRINA EPSTEIN, Defendants. ---------------------------------------------------------------------------X MICHAEL J.S. PONTONE, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, pursuant to CPLR §2106, duly affirms the truth of the following: 1. I am the managing partner of THE LAW OFFICES OF MICHAEL J.S. PONTONE, ESQ., P.C., the attorneys for the Plaintiff herein, and as such am fully familiar with the facts and circumstances surrounding this action. 2. This Affirmation is submitted in support of Plaintiff’s opposition to Defendant’s cross motion demonstrating Plaintiff’s claim for emotional harm is not improper nor therefore frivolous, seeking to deny Defendant’s cross motion in its entirety, and for such other and further relief as this court deems just and proper. ANALYSIS Plaintiff Can Demonstrate The Act And Presence Of Emotional Distress. 3. The tort 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. The first element — outrageous conduct — serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff's claim of severe 1 of 7 FILED: RICHMOND COUNTY CLERK 08/15/2018 08:23 PM INDEX NO. 151767/2016 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 08/15/2018 emotional distress is genuine (see, Prosser, Insult and Outrage, 44 Cal L Rev, at 44-45; compare, Mitchell v Rochester Ry Co., 151 NY, at 110). 4. In practice, courts have tended to focus on the outrageousness element, the one most susceptible to determination as a matter of law (see, Restatement [Second] of Torts § 46, comment h; Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct ["Social Decency"], 82 Colum L Rev 42, 42-43 [1982]). 5. "`Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'" (Murphy, 58 NY2d, at 303, quoting Restatement [Second] of Torts § 46, comment d). 6. The Second Restatement of Torts reads: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress" (Restatement [Second] of Torts § 46 [1] [1965]). 7. The act of selling, destroying, and/or disposing of Plaintiff’s property and family heirlooms, refusing to speak with the Plaintiff when she attempted to collect her belongings, and blatantly disregarding Plaintiff’s visible distress when she arrived at her home to find her possessions being removed surely constitutes and as extreme and outrageous. 9. Specifically, on October 10, 2016, the Plaintiff was driving in Brooklyn when she received a call from Sam who informed her that he had passed by Plaintiff’s Home and that he saw the bedroom set was being removed, among other property. Sam stated, “I think your property is being taken out of the house.” Plaintiff raced to the house to see what was going on. The Plaintiff immediately started driving towards Plaintiff’s Home and calling and texting 2 of 7 FILED: RICHMOND COUNTY CLERK 08/15/2018 08:23 PM INDEX NO. 151767/2016 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 08/15/2018 Defendant Vadim Epstein to see what was going on. Defendant Vadim Epstein responded back multiple times saying that he could not talk. 10. Plaintiff arrived at her home at approximately 10:30 am to find that Plaintiff’s Property was being loaded into moving trucks. Plaintiff entered the home where Defendant Vadim Epstein was directing the movers. There was no piano was in the living room and a substantial portion of her property had already been removed. 11. Defendant Vadim Epstein said that Plaintiff was trespassing and had to leave the premises. Defendant Vadim Epstein refused to answer any questions about where the rest of Plaintiff’s Property was or where the property being loaded into moving vans was being taken. At the time, Plaintiff suffered an acute emotional breakdown and panic attack at the prospect of all her possessions being stolen. The movers stopped moving Plaintiff’s Property but were immediately directed to continue by Defendant Vadim Epstein, and they did. Defendant stated that Plaintiff could not contact him any longer. Later that afternoon, Defendant Vadim Epstein said that she would be able to retrieve her property later. 12. Plaintiff continually attempted to retrieve her belongings by contacting the Defendant Vadim Epstein. Approximately one month later, after multiple texts and phone calls, Defendant Vadim Epstein responded that what remained of Plaintiff’s Property could be found in the driveway of Plaintiff's Home. The Plaintiff raced to Plaintiff's Home to find that the only thing put on the lawn were two boxes and a shopping bag filled with old papers and documents that were valueless. 13. All of Plaintiff's Personal Property, including family heirlooms, clothes, mementos, paintings made by her daughter, baby photos, and the valuable property listed in paragraph six, supra, is missing and unaccounted for. 3 of 7 FILED: RICHMOND COUNTY CLERK 08/15/2018 08:23 PM INDEX NO. 151767/2016 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 08/15/2018 14. There are plenty of alternative, civil options Defendant could have opted for to have the Subject Premises cleared of Plaintiff’s belongings, most simply, allowing the Plaintiff to collect her things as she attempted to do so on numerous occasions. 15. As said actions of the Defendant were the direct cause of Plaintiff’s emotional distress, it at least raises the question of intentional infliction of emotional harm. 16. Plaintiff’s mental health has continued to deteriorate following the devastating actions of the Defendant which in turn has significantly elevated her stress levels and in turn deteriorated her physical health. 17. There are a plethora of scholarly, psychological studies that clearly demonstrated a direct correlation between psychological well-being and physical health. 18. The American Psychological Association (APA) reported that negative emotions correlate with deficits in a person’s physical well-being. Specifically, in terms of stress, chronic stress can wear down the body over time, but even short-lived spurts of minor stress can have an impact on a person’s well-being. 19. As a result of the extreme stress at the hands of the Defendant, Plaintiff has suffered and will continue to suffer numerous medical conditions which have been documented and directly liked to this instant action. 20. See annexed hereto as Exhibit A a letter from Nicole Arcentales, D.O written on behalf of Plaintiff outlining her medical conditions that were likely related to stress caused by this instant action. 21. See annexed hereto as Exhibit B, a letter from Miroslawa Kudej, M.D. stating that the Plaintiff’s hormonal imbalance may be a result and exacerbated by extreme stress. 22. These medical professional’s letters evaluate and identify Plaintiff’s medical 4 of 7 FILED: RICHMOND COUNTY CLERK 08/15/2018 08:23 PM INDEX NO. 151767/2016 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 08/15/2018 conditions as a result of the stress and mental and emotional distress which are directly caused by the Defendant. Defendant’s Allegation of Frivolous Claim Has No Merit 23. Defendant’s assertion that Plaintiff’s claim for emotional harm is improper and therefore frivolous is in and of itself frivolous. Additionally, Defendant offers no evidence or explanation as to why such claim such would be constituted as frivolous. 24. As demonstrated supra, the Plaintiff has undoubtedly suffered emotional harm at the hands of the Defendant and has suffered and continues to suffer the affects negatively both mentally and physically. 25. CPLR 8303(c) states, “In order to find the action, claim, counterclaim, defense or cross claim to be frivolous under subdivision (a) of this section, the court must find one or more of the following…(ii) the action, claim, counterclaim, defense or cross claim was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law.” 26. Plaintiff’s claim for emotional harm does not fall within any of these sections and has been litigated and supported by factual evidence and relevant literature. Therefore, the Court should see that Defendant’s claim has no grounds. 27. In the case of Gloria McGill et al. v. Peggy Parker et al., the Defendants failed to demonstrate a frivolous action as none of Plaintiffs' causes were so blatantly meritless as to justify sanctions. Nor could it be said that Plaintiffs' lawsuit resulted in an improper use of the court's time. As a result, the IAS court denied the motions, noting, "[A]ssuming the allegations set forth [in the complaint] to be true * * * plaintiffs have stated viable causes of action against the 105*105defendants." McGill v. Parker, 179 AD 2d 98 - NY: Appellate Div., 1st Dept. 1992. 5 of 7 FILED: RICHMOND COUNTY CLERK 08/15/2018 08:23 PM INDEX NO. 151767/2016 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 08/15/2018 28. Furthermore, in the case of Accent Collections, Inc. v. Cappelli Enterprises, Inc., the Supreme Court “providently denied that branch of the plaintiff's motion which sought costs and attorneys' fees, as the plaintiff failed to demonstrate that the defendants' conduct was frivolous (see 22 NYCRR 130-1.1 [c])”. Accent Collections, Inc. v. Cappelli Enterprises, Inc., 84 AD 3d 1283 - NY: Appellate Div., 2nd Dept. 2011 29. WHEREFORE, it is respectfully requested that Plaintiff’s motion be granted in its entirety. Dated: August 15, 2018 Brooklyn, New York __________________________________ Michael J.S. Pontone, Esq. THE LAW OFFICES OF MICHAEL J. S. PONTONE, ESQ., P.C. Attorneys for Plaintiff SVETA COOLTSCHINSKI 532 Union Street Brooklyn, New York 11215 917-648-8784 6 of 7 FILED: RICHMOND COUNTY CLERK 08/15/2018 08:23 PM INDEX NO. 151767/2016 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 08/15/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ---------------------------------------------------------------------------X SVETA COOLTSCHINSKI Index No.: 151767/2016 Plaintiff, -against- VADIM EPSTEIN A/K/A VADIM EPSHTEYN; IRINA EPSHTEYN A/K/A IRINA EPSTEIN, Defendants. ---------------------------------------------------------------------------X AFFIRMATION IN OPPOSITION LAW OFFICES OF MICHAEL J. S. PONTONE, ESQ., P.C. ATTORNEYS FOR PLAINTIFF SVETA COOLTSCHINSKI 532 UNION STREET BROOKLYN, NEW YORK 11215 917-648-8784 7 of 7