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PLAINTIFF, IN THIS CHILD VICTIMS ACT SEXUAL ABUSE ACTION, PROPERLY ASSERTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AS AN ALTERNATIVE TO THE NEGLIGENCE CLAIMS, CRITERIA EXPLAINED IN DEPTH (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Higgitt, determined the intentional infliction of emotional distress (IIED) cause of action should not have been dismissed in this Child Victims Act sexual abuse case. Supreme Court held the IIED cause of action duplicated negligence causes of action. It was alleged that an employee of defendant church who coached a basketball team abused plaintiff, one of the players:

… [P]laintiff is asserting the IIED cause of action as an alternative claim to his negligence claims.

Thus … plaintiff is not barred from pursuing a cause of action for IIED.

… [T]he complaint states a cause of action for IIED. … [P]laintiff pleaded that defendant engaged in extreme and outrageous conduct.

… [P]laintiff alleged that defendant knowingly permitted its employee, a child molester, to coach its youth basketball team, and defendant turned a blind eye to the abuse, allowing the employee to repeatedly subject plaintiff to inappropriate sexual contact. In doing so, defendant abused a position of dominance. Defendant, a trusted institution, enjoyed a position of dominance over plaintiff, a then-adolescent, who wanted to play on a prestigious youth basketball program that the church administered. Additionally, plaintiff, an adolescent coached by a church deacon, was especially vulnerable. Plaintiff’s vulnerability is highlighted by the allegations that defendant’s employee was permitted by defendant to be alone with plaintiff in a locker room where the sexual contact occurred. And defendant’s undesirable conduct was continuing; defendant retained and supervised the coach over the two-year period of abuse.

Crediting plaintiff’s allegations, … defendant facilitated manifestly inappropriate physical contact of a sexual nature by a known child molester by allowing him to coach its youth basketball team and providing the coach with ready access to potential child victims. That conduct … goes beyond all possible bounds of decency and is atrocious and utterly intolerable in a civilized society …  We believe that an average member of the community would, upon reading the allegations in the complaint, find them to be outrageous … . Brown v Riverside Church in the City of N.Y., 2024 NY Slip Op 03927, First Dept 7-25-24

Practice Point: Consult this opinion for an explanation of when a cause of action for intentional infliction of emotional distress, in addition to negligence causes of action, is allowed.

Practice Point: Consult this opinion for the criteria for an intentional infliction of emotional distress cause of action.

 

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THE 2020 AMENDMENTS BROADENING THE REACH OF THE ANTI-SLAPP STATUTE DO NOT APPLY RETROACTIVELY; THEREFORE DEFENDANT’S COUNTERCLAIM BASED UPON THE AMENDED STATUTE SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s counterclaim under the anti-SLAPP statute should have been dismissed. Plaintiff, an attorney, brought this action for libel and intentional infliction of emotional distress based on letters and emails written by defendant which allegedly were intended to damage plaintiff’s reputation in the legal profession. The counterclaim alleged the defendant’s letters and emails were protected by the anti-SLAPP statute in the Civil Rights Law. The Second Department determined the 2020 amendments to that statute, which expanded its reach, do not apply retroactively and defendant, therefore, could not take advantage of those amendments: The counterclaim should have been dismissed:

The first counterclaim alleged that this action was a strategic lawsuit against public participation (hereinafter SLAPP) and sought, among other things, attorney’s fees, costs, and damages pursuant to Civil Rights Law § 70-a. * * *

Contrary to the defendant’s contention, the broadened definition of public petition and participation in the amended section 76-a does not apply retroactively to this action … . The complaint, therefore, is governed by the prior statutory definition of an action involving public petition and participation … . Burton v Porcelain, 2024 NY Slip Op 00291, Second Dept 1-24-24

Practice Point: The 2020 amendments to the anti-SLAPP statute do not apply retroactively. Lawsuits started before the amendments cannot take advantage of the broader reach of the amendments.

 

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ALTHOUGH THE CORRECTIONS OFFICERS CONDUCTING A STRIP SEARCH OF CLAIMANT PRISONER WERE PARTIALLY MOTIVATED BY THE INTENT TO HUMILIATE, THEY WERE DEEMED TO BE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT AND THE STATE IS VICARIOUSLY LIABLE FOR THEIR INTENTIONAL TORTS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan, determined the state was properly found liable for the actions of corrections officers who conducted a strip search of claimant prisoner. The strip search protocol includes having a male inmate lift his testicles and spread his cheeks. Here the corrections officers repeatedly made claimant touch his genitals and then run his fingers along his gums. The officers made claimant do the same after inserting his finger in his anus. Although the officers were committing intentional torts, their actions were deemed to be within the scope of their employment, making the state vicariously liable:

The law is well established that intentional torts may still fall within the scope of employment, and the motivation for such conduct is not dispositive as to defendant’s liability; rather, that factor is but one of several for our consideration pertaining to whether such acts were foreseeable as “a natural incident of the employment” … . Said differently, “where the element of general foreseeability exists, even intentional tort situations have been found to fall within the scope of employment”… . Although the correction officers’ actions may have been motivated in part by an intent to humiliate claimant, we disagree with defendant’s assertion that such intent was the sole motivation for each of the commands and that such actions were undertaken without any furtherance of defendant’s business .. . In this respect, the preponderance of the acts performed during the strip frisk and placement into observation did not significantly deviate from the mandates of the directive and were in fact required prior to claimant’s confinement in one-on-one observation. What rendered the incident demeaning, and the reason that claimant has a viable claim, is the product of the sequence in which those acts occurred. Moreover, the potential for such conduct is precisely that which was foreseen in the warnings contained in the directives, which instructed those officers conducting a strip frisk to be mindful of the sensitive nature of the search and to conduct themselves “in a manner least degrading to all involved.” M.K. v State of New York, 2023 NY Slip Op 03268, Third Dept 6-15-23

Practice Point: An employer can be vicariously liable for the intentional torts of employees if the employees were acting within the scope of their employment. Here corrections officers were conducting a required strip search of the claimant prisoner, but they did so in a mean-spirited and deliberately and profoundly degrading manner. The state was deemed vicariously liable for the officers’ intentional torts.

Practice Point: The decision does not specify the intentional torts for which the state was found liable. There is a public policy prohibiting “intentional infliction of emotional distress” claims against governmental entities, so that cause of action may not have been a basis for the state’s liability in this case. The Digest does not have a general “Intentional Torts” category. This decision was placed in the “Intentional Infliction of Emotional Distress” category only because it seems closest to the facts.

 

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AFTER A DIVORCE PLAINTIFF SUED THE EX-WIFE AND HER ATTORNEYS ALLEGING FALSE ARREST, MALICIOUS PROSECUTION, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF JUDICIARY LAW 487; THOSE CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the false arrest, malicious prosecution, intentional infliction of emotional distress and Judiciary Law 487 causes of action against defendant attorneys should have dismissed for failure to state causes of action:

The plaintiff and the defendant Janet P. Lezama were married … . … Lezama commenced an action for a divorce … in which she was represented by the defendants Dana Navins and Kass & Navins, PLLC … . After the divorce … , the plaintiff commenced this action against Lezama and the attorney defendants to recover damages for false arrest, malicious prosecution, negligent infliction of emotional distress, and violation of Judiciary Law § 487 based on allegations that the defendants concocted a “plan” to obtain a divorce against the plaintiff and obtain an excessive “financial settlement.” … [P]laintiff alleged that, as part of this plan, Lezama made false allegations of child abuse and criminal conduct against the plaintiff. * * *

“To be held liable for false arrest, [a civilian] defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his or her own volition” … . Similarly, to be held liable for malicious prosecution, it must be shown that the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act … . “Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or District Attorney” … . * * *

With respect to the intentional infliction of emotional distress cause of action, the improper conduct alleged was not “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” … . With respect to the Judiciary Law § 487 cause of action, the plaintiff failed to allege with specificity any material misstatements of fact made by the attorney defendants in the divorce action with the intent to deceive that court … . Tueme v Lezama, 2023 NY Slip Op 03036, Second Dept 6-7-23

Practice Point: The complaint did not state causes of action for false arrest, malicious prosecution, intentional infliction of emotional distress or violation of Judiciary Law 487, criteria explained.

 

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PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY A PRIEST WHILE ATTENDING DEFENDANT’S SCHOOL; THE COMPLAINT STATED CAUSES OF ACTION FOR NEGLIGENT HIRING, NEGLIGENT SUPERVISION AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this Child Victims Act action alleging sexual abuse by a priest while plaintiff was attending defendant’s parish school stated causes of action for negligent hiring, negligent supervision and intentional infliction of emotional distress. “The complaint alleged .* * * the priest … was an employee and/or an agent of the defendant, that the defendant had knowledge that the priest was abusing students, including the plaintiff, or that he had the propensity to abuse, and that the sexual abuse of the plaintiff occurred during school activities and during times at which the plaintiff was under the defendant’s supervision and care, custody, and control.”:

An employer can be held liable under theories of negligent hiring, retention, and supervision where the complaint alleges that “the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Causes of action alleging negligence based upon negligent hiring, retention, or supervision are not statutorily required to be pleaded with specificity … .

… [A] school “has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians” … .

… [T]reating the allegations in the complaint as true, including that the defendant had knowledge of the priest’s sexual abuse of the plaintiff and other children and concealed that abuse, and giving the plaintiff the benefit of every possible favorable inference, the alleged conduct would be sufficiently outrageous in character and extreme in degree to set forth a cause of action for intentional infliction of emotional distress … . Novak v Sisters of the Heart of Mary, 2022 NY Slip Op 06814, Second Dept 11-30-22

Practice Point: In an action pursuant to the Child Victims Act, plaintiff alleged he was sexually abused by a priest while attending defendant’s school. The complaint alleged defendant knew about the abuse. The complaint causes of action for negligent hiring, negligent supervision and intentional infliction of emotional distress.

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST THE DIOCESE; PURSUANT TO THE CHILD VICTIMS ACT, PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY A PRIEST WHEN HE WAS 15 TO 16 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant Diocese’s motion to dismiss the intentional infliction of emotional distress cause of action should not have been granted. Plaintiff, pursuant to the Child Victims Act, alleged he was sexually abused by a priest when he was 15 to 15 years old:

“The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress” … . Here, treating as true the plaintiff’s allegations in the second amended complaint, that the defendants had knowledge of the priest’s sexual abuse of the plaintiff and other children, yet concealed the abuse and permitted it to continue, and according the plaintiff the benefit of every possible favorable inference, the alleged conduct was sufficiently outrageous in character and extreme in degree to set forth a cause of action for intentional infliction of emotional distress … . The plaintiff also sufficiently alleged a causal connection between the defendants’ alleged outrageous conduct and the plaintiff’s injuries … . Moreover, this cause of action is not duplicative of the cause of action seeking to recover damages for negligence … . Eskridge v Diocese of Brooklyn, 2022 NY Slip Op 06788, Second Dept 11-30-22

Practice Point: Here the complaint stated a cause of action for intentional infliction of emotional distress against the Diocese based on the alleged sexual abuse of plaintiff by a priest, criteria explained.

 

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THE ALLEGED INTENTIONAL ACT OF THROWING A HAND TRUCK AT A BUS INJURING PLAINTIFF-PASSENGER DID NOT SUPPORT NEGLIGENCE OR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION, BUT DID SUPPORT AN INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the allegation plaintiff was injured when defendant (McGregor) threw a hand truck at the bus in which plaintiff was a passenger did not support causes of action for negligence or negligent infliction of emotional distress, but did support a cause of action for intentional infliction of emotional distress:

… [T]he only inference that may be drawn from the plaintiff’s allegations is that the plaintiff’s alleged injuries resulted solely from McGregor’s intentional acts. Contrary to the plaintiff’s contention, even if McGregor “lacked any intent to make physical contact with, or otherwise injure, the plaintiff, the conduct attributed to [McGregor] in the amended complaint . . . constituted intentional, rather than negligent, conduct” … . …

“A negligent infliction of emotional distress cause of action must fail where, as here, no allegations of negligence appear in the pleadings” … . …

[Re; intentional infliction of emotional distress:] … [T]he complaint sufficiently alleged that McGregor engaged in conduct “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” … . Besides the alleged throwing of the hand truck that is the basis of the plaintiff’s assault and battery causes of action, the plaintiff also alleges that McGregor threw other objects at the bus, attempted to board the bus, prevented the bus from moving, kicked the bus, and yelled threats and expletives. Chiesa v McGregor, 2022 NY Slip Op 05982, Second Dept 10-26-22

Practice Point: Here the alleged intentional act of throwing a hand truck at a bus injuring plaintiff-passenger did not support negligence and negligent infliction of emotional distress causes of action, even though the injuries to plaintiff may not have been intended. The allegation did support an intentional infliction of emotional distress cause of action.

 

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PLAINTIFFS-TENANTS STATED CLAIMS FOR TENANT HARASSMENT, PRIVATE NUISANCE, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND PUNITIVE DAMAGES FOR FAILURE TO PROVIDE ELECTRICITY, WATER, HEAT AND VENTILATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff-tenants stated claims for tenant (statutory) harassment, private nuisance, intentional infliction of emotional distress and punitive damages in connection with failure to provide electricity, water, heat and ventilation:

The complaint states a cause of action for harassment under Administrative Code of City of NY §§ 27-2005 (d) and 27-2115 (m) … . Namely, it sufficiently alleges that defendants failed to provide essential services, including electricity, water, heat, and ventilation, resulting in violations of the Housing Maintenance Code, and that that failure was calculated to and did cause plaintiffs to vacate their apartment … . …

Defendants do not oppose the reinstatement of the claims for private nuisance or intentional infliction of emotional distress, opting to litigate those claims on the merits. However, contrary to defendants’ contention, punitive damages may be appropriate under both causes of action if the alleged acts are shown to be intentional or malicious … . Carlson v Chelsea Hotel Owner, LLC, 2022 NY Slip Op 01117, First Dept 2-22-22

 

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PLAINTIFF’S COMPLAINT AGAINST THE DEFAULTING DEFENDANT-ATTORNEY SUFFICIENTLY ALLEGED GENDER DISCRIMINATION AND INFLICTION OF EMOTIONAL DISTRESS BY DEFENDANT-ATTORNEY’S WITHHOLDING REQUESTED LEGAL SERVICES AND ENGAGING IN SEXUAL HARASSMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s complaint against the defaulting attorney-defendant should not have been dismissed. Plaintiff alleged defendant attorney discriminated against her by depriving her of the legal services she sought in connection with a sexual assault. Plaintiff alleged she was sexually harassed by defendant attorney. The matter was sent back to determine damages:

“[B]y defaulting, a defendant admits all traversable allegations contained in the complaint, and thus concedes liability, although not damages” … . “Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action,” but the standard of proof is “minimal,” “not stringent” … .

… [P]laintiff averred that defendant … used his position of authority and confidence as an attorney to gain her trust, and then discriminated against her by withholding the legal services she sought in connection with litigation related to a sexual assault of plaintiff and using the pretext of offering such services to harass and subject her to unwelcome sexual conduct and advances. …

Plaintiff established claims under New York State Executive Law § 269(2)(a) (State HRL) that defendant … discriminated against plaintiff based on her gender … . [P]laintiff also made a prima facie showing that defendant[‘s] … discriminatory behavior violated the City HRL … . [P]laintiff established her claim for intentional infliction of emotional distress by demonstrating that defendant … engaged in extreme and outrageous conduct through his deliberate and malicious campaign of harassment, while disregarding a substantial probability that doing so would cause severe emotional distress to her, and that his conduct did in fact did cause her severe emotional distress … . Petty v Law Off. of Robert P. Santoriella, P.C., 2021 NY Slip Op 07527, First Dept 12-28-21

 

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ALTHOUGH DEFENDANT THEATER MANAGER WAS NOT A SECURITY GUARD, HIS RESPONSIBILITIES INCLUDED DEALING WITH UNRULY PATRONS AND KEEPING THE PREMISES SAFE; THERE WAS A QUESTION OF FACT WHETHER HE WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE THREATENED A PATRON WITH A PELLET GUN; THEREBY RAISING A QUESTION OF FACT WHETHER THE THEATER WAS LIABLE FOR THE MANAGER’S ACTIONS UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the defendant movie- theater manager, Adams, may have been acting within the scope of his employment by the theater, AMC, when he threatened plaintiff, a theater patron, with a pellet gun. Therefore AMC’s motion for summary judgment should not have been granted:

… [T]he general manager of the theater, Adams’s supervisor, stated, during his deposition, that managers, like Adams, have security-related responsibilities, including ensuring that the theater is safe for customers and dealing with unruly patrons. And the plaintiff, during his deposition, stated that he believed Adams was a security guard.

When a business employs security guards or bouncers to maintain order, the use of physical force may be within the scope of their employment … . Adams did not hold either of these job titles, but his responsibilities included maintaining order at the theater, ensuring the safety of customers and staff, and, if necessary, facilitating the removal from the theater of “disruptive or potentially violent” customers. The accomplishment of these ends by means prohibited by the AMC defendants’ policy was not necessarily unforeseeable. … Unquestionably, Adams’s response to the plaintiff and his friends was “in poor judgment” …  and contrary to the AMC defendants’ policy, but “this in itself does not absolve [the AMC] defendants of liability for his acts” … . Norwood v Simon Prop. Group, Inc., 2021 NY Slip Op 07006, Second Dept 12-15-21

 

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