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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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Most of Plaintiff’s Causes of Action Were Allegations Concerning the Conduct of a State Employee in His Official Capacity—Therefore, Those Causes of Action Were Actually Against the State and Could Only Be Heard in the Court of Claims/Elements of Intentional Infliction of Emotional Distress Explained

The Second Department upheld the dismissal of several causes of action (brought in Supreme Court) which were determined to constitute actions against the state because they were directed at the official conduct of an individual employed by the state. Actions against the state can be heard only in the Court of Claims. The suit was brought by a doctor employed by the SUNY Downstate Medical Center and alleged breach of contract, wrongful termination of employment, promissory estoppel, defamation and intentional infliction of emotional distress.  The Second Department concluded that only defamation should survive because that cause of action was against plaintiff’s boss, Dr. Abulafia, in his individual, not official, capacity.  The intentional infliction of emotional distress cause of action, which was also against Dr. Abulafia in his individual capacity, was dismissed because it was not sufficiently alleged:

“The Court of Claims has limited jurisdiction to hear actions against the State itself, or actions naming State agencies or officials as defendants, where the action is, in reality, one against the State—i.e., where the State is the real party in interest” … . Generally, “[t]he Court of Claims has exclusive jurisdiction over actions for money damages against State agencies, departments, and employees acting in their official capacity in the exercise of governmental functions” … . “Where, however, the suit against the State agent or officer is in tort for damages arising from the breach of a duty owed individually by such agent or officer directly to the injured party, the State is not the real party in interest—even though it could be held secondarily liable for the tortious acts under respondeat superior” … .

Contrary to the plaintiff’s contention, the Supreme Court properly granted those branches of the defendants’ motion which were to dismiss the causes of action to recover damages for breach of contract, wrongful termination of employment, and promissory estoppel insofar as asserted against Abulafia, correctly concluding that it lacked subject matter jurisdiction to entertain those cases of action insofar as asserted against Abulafia, as those causes of action arose from acts performed, and determinations made, by Abulafia as a State employee acting in his official capacity… . * * *

“In order to state a cause of action to recover damages for intentional infliction of emotional distress, the complaint must allege conduct that was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . and [was] utterly intolerable in a civilized community'” … . Even accepting as true the allegations in the complaint regarding Abulafia’s conduct, and according the plaintiff the benefit of every possible favorable inference …, Abulafia’s conduct was not “so outrageous in character, and so extreme in degree” as to qualify as intentional infliction of emotional distress … .  Borawski v Abulafia, 2014 NY Slip Op 03221, 2nd Dept 5-7-14

 

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Elements of Intentional Infliction of Emotional Distress and Prima Facie Tort Described

In finding the counterclaims for intentional infliction of emotional distress and prima facie tort were properly dismissed, the Third Department described the elements of those causes of action:

…[W]ith respect to the counterclaim for intentional infliction of emotional distress [,] … [defendant] was required to plead “extreme and outrageous conduct, the intentional or reckless nature of such conduct, a causal relationship between the conduct and the resulting injury, and severe emotional distress” … . Notably, the alleged conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . and [be] utterly intolerable in a civilized community” … . Here, [defendant] alleged that, during the course of their professional relationship, plaintiff sent unwanted gifts and letters, engaged in suggestive conversations and made threats of future conduct toward him. Even reading the allegations liberally and accepting them as true, we find that the alleged conduct, while undeniably inappropriate, did not rise to the level of being “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency” … . …

As for [defendant’s] counterclaim for prima facie tort, there can be no recovery under this theory “unless malevolence is the sole motive for [plaintiff’s] otherwise lawful act or, in [other words], unless [plaintiff] acts from disinterested malevolence” … . Stated another way, the act “must be a malicious one unmixed with any other and exclusively directed to injury and damage of another” … . Hyman v Schwartz, 2015 NY Slip Op 02819, 3rd Dept 4-2-15

 

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Intentional Infliction of Emotional Distress Action Against Governmental Entity Barred by Public Policy

In affirming the dismissal of plaintiff’s complaint for false arrest, malicious prosecution, assault and battery, etc., the Second Department noted:  “ [p]ublic policy bars claims for intentional infliction of emotional distress against a governmental entity’”… .  Rodgers v City of New York, 2013 NY Slip Op 03926, 2nd Dept, 5-29-13

 

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