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WHETHER PLAINTIFFS WILL BE ABLE TO ESTABLISH THE CLAIMS IN A COMPLAINT IS NOT CONSIDERED ON A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM; HERE THE DEFENDANTS’ ARGUMENT THAT PLAINTIFFS WILL NOT BE ABLE TO LEARN AN ESSENTIAL ASPECT OF THEIR CASE IN DISCOVERY BECAUSE OF STATUTORY IMMUNITY WAS NOT RELEVANT TO WHETHER THE COMPLAINT STATED CAUSES OF ACTION (FIRST DEPT).

The First Department determined defendant school’s motion to dismiss the complaint was properly denied. Plaintiffs alleged the school retaliated against them after they complained about race-related issues by making a false child neglect report to Child Protective Services (CPS). The school argued the plaintiffs will not be able to learn the identity of the person who reported the alleged neglect because of the immunity provided by the Social Services Law. The Second Department explained that the immunity question is not relevant to whether the complaint states causes of action:

… [P]laintiffs assert causes of action for intentional infliction of emotional distress, defamation, violations of the New York State and City Human Rights Laws, and negligent hiring, training and supervision … .

Defendants moved to dismiss all of these causes of action on the basis that plaintiffs would be unable to prove any of these claims because they did not know the identity of the CPS reporter and would be unable to learn it in discovery. …

… [I]n the context of this motion to dismiss, the Court does not assess the relative merits of the complaint’s allegations against defendant’s contrary assertions or to determine whether or not plaintiffs can produce evidence to support their claims … . Whether plaintiffs “can ultimately establish [their] allegations is not a part of the calculus in determining a motion to dismiss” … . Thus, regardless of whether plaintiffs will be able to obtain disclosure concerning the identity of the CPS reporter (Social Services Law § 422[4][A] …), defendants have not demonstrated entitlement to dismissal of the well-pleaded complaint for failure to state a cause of action … . M.H.B. v E.C.F.S., 2019 NY Slip Op 08276, First Dept 11-14-19

 

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THE ZONE OF DANGER THEORY OF LIABILITY IS AVAILABLE ONLY TO THE IMMEDIATE RELATIVES OF THE INJURED PARTY; PETITIONERS’ CHILDREN WITNESSED THE FATAL INJURY TO ANOTHER STUDENT WHO WAS NOT RELATED; PETITIONERS’ REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT ALLEGING INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against the school district should not have been granted. The petitioners are the parents of students who were participating in football training when the pole or log they were carrying dropped and fatally injured another student. The late notice of claim asserted intentional and negligent infliction of emotional distress based upon the petitioners’ children being in the “zone of danger.” However, the “zone of danger” theory can be raised only by the immediate relatives of the injured party:

“The zone-of-danger rule . . . allows one who is himself or herself threatened with bodily harm in consequence of the defendant’s negligence to recover for emotional distress resulting from viewing the death or serious physical injury of a member of his or her immediate family” … . Here, the petitioners’s children were not immediate family members of the decedent. Thus, they have no legally cognizable claim to recover damages for emotional distress they allegedly sustained from witnessing the accident … , or based upon the District’s alleged refusal to provide continued counseling and maintain the coaching staff support system, as such damages are a financial consequence of their emotional trauma … . Moreover, the District demonstrated that, under the circumstances presented, it was not authorized to pay for continued outside counseling services for the petitioners’ children, and the record reflects that the District provided ongoing counseling from mental health professionals employed by the District. Under the circumstances, the proposed claim against the District is patently meritless … . Matter of Kmiotek v Sachem Cent. Sch. Dist., 2019 NY Slip Op 07583, Second Dept 10-23-19

 

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THE SEVERE EMOTIONAL DISTRESS ELEMENT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS DOES NOT REQUIRE OBJECTIVE MEDICAL EVIDENCE (FOURTH DEPT).

The Fourth Department, over a dissent, determined it was not necessary to present objective medical evidence to establish the severe emotional distress element of intentional infliction of emotional distress:

On appeal from an order and judgment that awarded plaintiff money damages following a nonjury trial, we reject defendants’ contention that the evidence is legally insufficient to establish that plaintiff suffered severe emotional distress. Although severe emotional distress is an element of the tort of intentional infliction of emotional distress … , Supreme Court properly concluded that plaintiff was not required to present objective medical evidence in order to establish that element of her cause of action … . Fellows v Rosati, 2019 NY Slip Op 03508, Fourth Dept 5-3-19

 

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NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST A SPOUSE OR FORMER SPOUSE STEMMING FROM EVENTS DURING THE MARRIAGE (SECOND DEPT).

The Second Department noted that, in New York, an intentional infliction of emotional distress cause of action cannot be brought against a spouse or former spouse regarding event occurring during marriage:

New York does not recognize a cause of action alleging the intentional infliction of emotional distress between spouses or former spouses based upon allegations of events that occurred during the marriage … . In any event, the conduct complained of does not rise to the level of extreme and outrageous behavior required for a valid claim of intentional infliction of emotional distress … . Chen v Dehjung Deborah Wang, 2018 NY Slip Op 06076, Second Dept 9-19-18

FAMILY LAW (NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST A SPOUSE OR FORMER SPOUSE STEMMING FROM EVENTS DURING THE MARRIAGE (SECOND DEPT))/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (FAMILY LAW, NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST A SPOUSE OR FORMER SPOUSE STEMMING FROM EVENTS DURING THE MARRIAGE (SECOND DEPT))

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AS A MATTER OF PUBLIC POLICY, AN ACTION ALLEGING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CANNOT BE BROUGHT AGAINST A MUNICIPALITY (SECOND DEPT).

The Second Department, in an action for false arrest and related causes of action, all of which were dismissed, noted that an action for intentional infliction of emotional distress cannot, as a matter of public policy, be brought against a municipality:

… [W]e agree with the Supreme Court's determination granting that branch of the defendants' motion which was to dismiss the cause of action to recover damages for intentional infliction of emotional distress with respect to the City, as “public policy bars claims sounding in intentional infliction of emotional distress against a governmental entity”… . Moreover, the defendants established their prima facie entitlement to judgment as a matter of law dismissing that cause of action insofar as asserted against [the arresting officer] by establishing that [the officer]i did not engage in extreme or outrageous conduct … . Ball v Miller, 2018 NY Slip Op 05813, Second Dept 8-22-18

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (MUNICIPAL LAW, AS A MATTER OF PUBLIC POLICY, AN ACTION ALLEGING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CANNOT BE BROUGHT AGAINST A MUNICIPALITY (SECOND DEPT))/MUNICIPAL LAW (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AS A MATTER OF PUBLIC POLICY, AN ACTION ALLEGING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CANNOT BE BROUGHT AGAINST A MUNICIPALITY (SECOND DEPT))

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COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, reversing Supreme Court, determined the complaint stated causes of action against the city and a city police officer (DeBellis) in connection with, inter alia, warrantless home visits by the officer purportedly concerning the well-being of plaintiff’s child and allegedly false complaints by the officer to the Administration for Children’s Services (ACS):

… [A]lthough not expressly pleaded, the factual allegations in the complaint fit within a cause of action against DeBellis for intentional infliction of emotional distress based on her alleged malicious or reckless false reporting to ACS and malicious campaign of harassment. …

…[W]e cannot say, as a matter of law, that DeBellis’s actions did not rise to the requisite level of outrageous conduct. The facts alleged by plaintiff describe both (1) a deliberate and malicious campaign of harassment and intimidation and (2) an abuse of power. …

Plaintiff has also stated a claim against defendants under 42 USC § 1983 for deprivation of plaintiff’s constitutional rights, specifically, her right under the Fourth Amendment to be free from warrantless and unlawful entries into the home … . …

Despite … allegations of repeated notice to DeBellis’s superiors of her actions, there is no indication … any action was taken to restrain her. Accordingly … plaintiff has stated a claim for holding the City liable under § 1983 on account of its gross negligence or deliberate indifference to DeBellis’s unconstitutional actions … . …

…[Plaintiff] states a claim against the City for negligent supervision and retention of DeBellis … . Under this theory, an employer may be liable for the acts of an employee outside the scope of his or her employment … . Contrary to the City’s argument, the facts permit an inference that DeBellis was acting outside of the scope of her employment, and, as plaintiff argues, “had some personal axe to grind.” Scollar v City of New York, 2018 NY Slip Op 02032, First Dept 3-22-18

MUNICIPAL LAW (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/CIVIL RIGHTS LAW (42 USC 1983)  (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/NEGLIGENCE (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/INTENTIONAL TORTS (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/EMPLOYMENT LAW (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/NEGLIGENT SUPERVISION AND RETENTION COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))

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PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

The Second Department determined Supreme Court properly granted the petition for pre-action disclosure of the identity of the person or persons who widely distributed an intimate photo of a portion of a high school student’s (the potential plaintiff’s) body and identified the student depicted in the photo. The purpose of the disclosure was to identify potential defendants. The facts were sufficient to support an action for intentional infliction of emotional distress:

“Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order” (CPLR 3102[c]…). “[D]isclosure to aid in bringing an action’ (CPLR 3102 [c]) authorizes discovery to allow a plaintiff to frame a complaint and to obtain the identity of the prospective defendants”… .. However, pre-action disclosure “may not be used to determine whether the plaintiff has a cause of action” … . This limitation is “designed to prevent the initiation of troublesome and expensive procedures, based upon a mere suspicion, which may annoy and intrude upon an innocent party” … . “Where, however, the facts alleged state a cause of action, the protection of a party’s affairs is no longer the primary consideration and an examination to determine the identities of the parties and what form or forms the action should take is appropriate” … .  Accordingly, “[a] petition for pre-action discovery limited to obtaining the identity of prospective defendants should be granted where the petitioner has alleged facts fairly indicating that he or she has some cause of action” … . * * *

Under New York law, a cause of action alleging intentional infliction 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”… . . In support of its argument that the petition failed to allege facts that would constitute a cognizable cause of action against the unidentified individual, the school contends that the petition failed to adequately allege extreme and outrageous conduct.

The element of 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 emotional distress is genuine” … . ” 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'” … .  Indeed, “where severe mental pain or anguish is inflicted through a deliberate and malicious campaign of harassment or intimidation, a remedy is available in the form of an action for the intentional infliction of emotional distress” … . Here, assuming the truth of the facts alleged in the petition, the acts complained of could be found by a trier of fact to amount to extreme and outrageous conduct which cannot be tolerated in a civilized community … . Matter of Leff v Our Lady of Mercy Academy, 2017 NY Slip Op 04280, 2nd Dept 5-31-17

 

CIVIL PROCEDURE (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/EDUCATION-SCHOOL LAW (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/INTENTIONAL TORTS (INFLICTION OF EMOTIONAL DISTRESS, CIVIL PROCEDURE, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/EVIDENCE (CIVIL PROCEDURE, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/OUTRAGEOUS CONDUCT (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, CIVIL PROCEDURE, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/PHOTOGRAPHS (INTIMATE, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/DISCLOSURE (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/PRE-ACTION DISCLOSURE (IDENTIFY DEFENDANTS, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)

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BREACH OF PHYSICIAN-PATIENT CONFIDENTIALITY CAUSE OF ACTION ALLOWED TO PROCEED AGAINST HOSPITAL AND TREATING PHYSICIAN, PLAINTIFFS’ DECEDENT’S TREATMENT AND DEATH IN THE EMERGENCY ROOM WERE FILMED WITHOUT CONSENT; ALLEGATIONS OF OUTRAGEOUS CONDUCT NOT SUFFICIENT TO SUPPORT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION.

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined plaintiffs had stated a cause of action against the hospital and treating physician for breach of physician-patient confidentiality. At the time plaintiffs' decedent was admitted to the emergency room, a television crew was filming. Without decedent's consent, his treatment and death were recorded and subsequently aired. Although the breach of confidentiality cause of action was allowed to go forward, the intentional infliction of emotional distress cause of action was not. The allegations were deemed not to meet the requirements of the “extreme and outrageous conduct” element of the tort. With respect to the breach of confidentiality, the court explained:

The elements of a cause of action for breach of physician-patient confidentiality are: (1) the existence of a physician-patient relationship; (2) the physician's acquisition of information relating to the patient's treatment or diagnosis; (3) the disclosure of such confidential information to a person not connected with the patient's medical treatment, in a manner that allows the patient to be identified; (4) lack of consent for that disclosure; and (5) damages … .  Here, the complaint alleges that decedent was a patient at the Hospital and that Schubl was his treating physician. In the complaint's fourth cause of action, decedent's estate alleges “[t]hat defendants[] unnecessarily, recklessly, willfully, maliciously and in conscious disregard of [decedent's] rights disclosed and discussed his medical condition with cast members of [the television crew] and allowed them to videotape said conversations and videotape his medical treatment for broadcast and dissemination to the public in an episode of that television show.” Asserting that the public does not have any legitimate interest in this information, the complaint states that “[d]efendants' disclosure of [decedent's] medical information constitutes a violation of physician[-]patient confidentiality and an invasion of his privacy and is a violation of State and Federal statutes protecting the privacy of medical records and information.” The complaint seeks damages for injuries and loss as determined at trial. Chanko v American Broadcasting Cos. Inc., 2016 NY Slip Op 02478, CtApp 3-31-16

PHYSICIAN-PATIENT CONFIDENTIALITY, BREACH OF BREACH OF (PHYSICIAN-PATIENT CONFIDENTIALITY CAUSE OF ACTION ALLOWED TO PROCEED AGAINST HOSPITAL AND TREATING PHYSICIAN, PLAINTIFFS' DECEDENT'S TREATMENT AND DEATH IN THE EMERGENCY ROOM WERE FILMED WITHOUT CONSENT)/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (ALLEGATIONS OF OUTRAGEOUS CONDUCT NOT SUFFICIENT TO SUPPORT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION, PLAINTIFFS' DECEDENT'S MEDICAL TREATMENT AND DEATH WERE FILMED AND AIRED WITHOUT CONSENT)

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Public Policy Bars a Cause of Action Against Government Officials (in their Official Capacities) for Intentional Infliction of Emotional Distress

The Second Department noted that an intentional infliction of emotional distress cause of action cannot be brought against a governmental entity.  Since the respondents were sued only in their official capacities, the cause of action was properly dismissed:

“[P]ublic policy bars claims sounding in intentional infliction of emotional distress against a governmental entity” … . Here, the individual respondents were only sued in their official capacities. Therefore, the petitioner could not and did not state a cause of action against them for intentional infliction of emotional distress. Matter of Gottlieb v City of New York, 2015 NY Slip Op 04645, 2nd Dept 6-3-15

 

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No Allegation Plaintiffs’ “Physical Safety” Was Endangered Re: Cause of Action for Negligent Infliction of Emotional Distress/No Allegation of Sufficiently Extreme and Outrageous Conduct Re: Cause of Action for Intentional Infliction of Emotional Distress—Those Causes of Action Were Therefore Properly Dismissed

The plaintiffs alleged defendants defrauded them in connection with a deed which purported to transfer plaintiffs’ property to a third party and the related mortgages.  In addition to the action to quiet title pursuant to Real Property Actions and Proceedings Law, the plaintiffs alleged causes of action for negligent and intentional infliction of emotional distress (among several others). The Second Department determined those causes of action were properly dismissed and explained the pleading defects, notably (1) the absence of a duty which could give rise to tort liability, (2) the failure to allege plaintiffs’ “physical safety” was endangered (negligent infliction of emotional distress), and (3) the failure to allege sufficiently extreme and outrageous conduct (intentional infliction of emotional distress):

Here, as the [defendants who initially serviced the loan payments made by plaintiffs] correctly assert, the complaint fails to state a cause of action to recover damages for negligent or intentional infliction of emotional distress as against them. The relationship between the plaintiffs and those defendants “does not give rise to a duty which could furnish a basis for tort liability” in negligence … . Further, the plaintiffs did not allege that their “physical safety” was endangered or that they were caused to fear for their physical safety, which is generally an element of a cause of action based on negligent infliction of emotional distress … . Moreover, the conduct complained of is not sufficiently extreme and outrageous to support the cause of action to recover for damages for intentional infliction of emotional distress … . Pirrelli v OCWEN Loan Servicing, LLC, 2015 NY Slip Op 04625, 2nd Dept 6-3-15

 

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