(dissenting). In our view, the tort of intentional infliction of severe emotional distress is inapplicable to the facts set forth in the record. The parties to this action lived together for 14 years and, during the last decade of that period, their relationship was both strident and bizarre. In 1973, approximately five years after their relationship began, defendant removed all of plaintiff’s possessions to the mainland and declared their tryst at an end. Plaintiff moved everything back to the island and voluntarily endured for the next nine years *968defendant’s indifference toward her as a nonmarital partner. In August 1981, plaintiff began a written serialization of defendant’s acts of assault, threats, neglect and property destruction. This diary was the centerpiece of plaintiff’s cause of action “for conduct exceeding all bounds usually tolerated by decent society” (Prosser and Keeton, Torts, § 12, at 60 [5th ed 1984]). It covered a period approximately 10 years in length, and not once during that period did plaintiff either remove herself from the island or seek redress by resort to any traditional tort action. Rather, she meticulously recorded each alleged event until, apparently, the totality of defendant’s conduct justified this action for money damages.
In Halio v Lurie (15 AD2d 62), the seminal case in this State that first recognized the tort of intentional infliction of severe emotional distress, the court recognized the clear danger of vexatious suits and fictitious claims, as did the Court of Appeals in Fischer v Maloney (43 NY2d 553, 557-558), wherein it stated, “Indeed, it may be questioned whether the doctrine of liability for intentional infliction of extreme emotional distress should be applicable where the conduct complained of falls well within the ambit of other traditional tort liability”. Indeed, liability for the traditional torts of assault, battery and trespass existed for over centuries before the still-evolving independent tort of intentional infliction of severe emotional distress was recognized to meet those rare instances where one is damaged by invidious, malevolent conduct of another without physical impact. Here, plaintiff diaried numerous acts of assault against her person and destruction of her property, all of which could have been redressed by resort to traditional tort actions.
Next, at trial plaintiff testified that she did not have any independent recollection of the incidents relied upon by hér to prove her action for intentional infliction of extreme emotional harm, all of which allegedly occurred in 1981 and 1982. Accordingly, over defendant’s objection, she was permitted to read extensively, at times verbatim, from her rewritten diary, which was penned during 1982 or 1983. This diary was apparently a re-creation of another diary. While deference is ordinarily afforded to factual determinations of a trier of facts when the issue is trustworthiness of a memorandum of past recollection recorded (see, People v Raja, 77 AD2d 322, 327) such deference should be withheld where, as here, by plaintiff’s own admission, the document was not made contemporaneously with the events described. While no arbitrary time limitation has been evolved by judicial decision, such phrases as “ ‘at or about the time of the transactions’ ”, “ ‘at the time or soon after’ ” and “ ‘at or near the *969time’ ” are commonly used to satisfy the trustworthiness guarantee (see, Fisch, New York Evidence § 335, at 219 [2d ed 1977]; Richardson, Evidence § 469, at 460-461 [Prince 10th ed 1973]). Here, plaintiff could not recall whether the diary used at trial to refresh her recollection about events that occurred in 1981 and 1982 had been rewritten in either 1982 or 1983. It, therefore, could not be admitted into evidence either directly as an exhibit or indirectly through her reading from it word for word as a past recollection recorded in the absence of any proof that the rewritten diary was made when plaintiff’s memory of the facts was still sufficiently fresh to enable her to correctly record them.
We would, therefore, reverse the judgment and dismiss the cause of action for intentional infliction of severe emotional distress.