Ford Motor Credit Co. v. Hickey Ford Sales, Inc. ( 1983 )

Levine, J. (concurring).

I agree with the majority’s determination upholding Trial Term’s award of damages for petitioners’ pecuniary losses arising out of Ford’s wrongful attachment, but disallowing the award of damages to the individual petitioners for emotional distress. Nevertheless, I believe that it is unnecessary for reaching that result and inappropriate to adopt the stringent requirement concerning the wrongdoers’ conduct, established in Fischer v Maloney (43 NY2d 553), for recovery for the separate tort of intentional infliction of severe emotional distress. In Fischer, the court specifically questioned whether “this emerging ground of tort liability” should be at all applicable “where the conduct complained of falls well within the ambit of other traditional tort liability” (id. at pp 557-558). Liability for wrongful attachment existed well before the tort of intentional infliction of emotional trauma was recognized, in an action sounding in conversion or trespass (Siegel v Northern Blvd. & 80th St. Corp., 31 AD2d 182, 187). It is true that the prevailing case law would require proof of malice or similar aggravating circumstances before compensatory damages could be awarded for emotional distress caused by a wrongful attachment (see, generally, Recovery of Damages for Mental Anguish, Distress, Suffering, or the Like, in Action for Wrongful Attachment, Garnishment, Sequestration, or Execution, Ann., 83 ALR3d 598). However, establishing legal malice, rather than actual malice, should be sufficient (see Brown v Guaranty Estates Corp., 239 NC 595; 6 Am Jur 2d, Attachment and Garnishment, § 598, p 986). Such malice can be inferred from conduct of the wrongdoer far less outrageous than is required to permit recovery under the Fischer v Maloney standard. Moreover, compensatory damages in intentional trespass actions have included “injury, insult, invasion of the privacy and interference with the comfort of the plaintiff and his family”, without the Fischer-type proof of the defendants’ conduct (see Reed v New York & Richmond Gas Co., 93 App Div 453, 455). In the instant case, however, the record is devoid of even the lesser standard of proof of malice or similar aggravating circumstances, and for that reason I join in the majority’s determination.