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Aly v. Garcia

July 18, 2000

SIBYL ALY AND BELGICA YSABEL CORREA DESOTO, PLAINTIFFS-RESPONDENTS,
v.
GUSTAVO GARCIA, DEFENDANT-APPELLANT.



Before Judges Stern, Wefing and Steinberg.

The opinion of the court was delivered by: Steinberg, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: April 12, 2000

On appeal from the Superior Court of New Jersey, Law Division, Hudson County.

Defendant Gustavo Garcia appeals from a judgment, based upon a jury verdict, entered against him in favor of plaintiff Sibyl Aly (Aly) and Belgica Ysabel Correa DeSoto (DeSoto). The jury awarded each plaintiff $8,000 in compensatory damages and $6,500 in punitive damages. We reverse.

Aly and DeSoto were tenants in a building owned by defendant and his wife. The Garcias operated a small family restaurant in the building. Aly lived with her companion and their child on the second floor of the building. DeSoto lived on the third floor with her husband, as well as her two sons and a daughter.

Aly testified that she initially had no problems with Garcia. However, approximately one month after she moved in Garcia began to make suggestive comments to her when he was in her apartment for the purpose of making repairs. She said Garcia said "things like, I was a good one, that I was pretty, that he would like to go to bed with me". He also pointed to the bed and said "that [it] was good to get me in it". She said Garcia touched her buttocks on one occasion, and touched her breast on another occasion. She said he always tried to touch her. He also said she "had a good behind and good legs". Aly said she told Garcia "that what he was doing constituted sexual harassment" but he said he was not afraid. She also said that on two occasions Garcia said he would like "to go out and have sex with [her]". He told her that her partner "was no good for [her], that [she] needed a man like him". Although she continued to object, Garcia's conduct persisted. He stopped supplying heat, making repairs, and also threatened to report her companion to the "Immigration Service" because he was "not legal in this country". As a result, she vacated the apartment.

Aly said Garcia's conduct made her "very uncomfortable". She said she felt frightened, humiliated and abused. She said she had "nervous tension, [she] couldn't sleep. She couldn't do anything". When asked how long those feelings lasted, she said "about five months, six months, a long time". After she moved she no longer felt "that constant pressure, that daily constant pressure". She said as she was testifying that she felt "very bad. Very uncomfortable, because that's relive [sic] the story all over again". Aly admitted she did not seek the assistance of a doctor. She claimed she could not afford one. She also admitted that she never went to a psychologist or clergyman, or sought counseling of any type.

DeSoto testified that she worked in the restaurant. At first defendant behaved "[v]ery well" towards her, however, on occasion, "he would get fresh". She explained that defendant "would say, boy, are you a good one". On several occasions in October 1995, as he was passing by her in the restaurant he would "brush against [her]" and say "that it would stand, that he would get an erection". DeSoto told him she "was going to take him to court". Defendant also would say, "your husband is no good for you. He's useless to you. This is what you can use. This is what would be of use to you", referring to his penis. She said on one occasion he took out his penis and said "[t]his is what you need, because your husband doesn't satisfy you". She said she left the restaurant and never returned.

She also said that during the same period of time "[h]e would always get fresh" towards her at the apartment. She said that from June 1995 to February 1996, her husband was in Santo Domingo. She claimed defendant constantly entered the apartment "at 10 o'clock at night and 7 in the morning" and said he wanted to take advantage of her husband's absence. "He would say, I have a big penis, and when it gets big, when I get an erection, I have a very big head and I will satisfy you, not your husband. I will satisfy you." Defendant told DeSoto he would tell her husband that she "was looking for men out in the street". He also said he was going to invite DeSoto's daughter "to a restaurant ... and then [he would] take her upstairs, to a hotel". She also testified that when she resisted defendant's advances he turned off her heat and electricity.

When asked on direct examination how these incidents made her feel, DeSoto said:

that bad for me. It was like an atomic bomb falling on me. The tears that I was shedding, they were blood tears that I was shedding. I even told my daughter that I wanted to kill myself, that I didn't want to live. And my little one, my little daughter, she was just about to confront him ... when they would come over.

When asked how she felt after she moved out of the apartment, DeSoto said:

I felt a little better, because I was away from him that he could do something to me. But I always have the dead sensation, the bad feeling that I was going to see him and that he was going to ...


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