The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Webber, determined “extreme and outrageous conduct” is not an essential element of negligent (as opposed to intentional) infliction of emotional distress. Here there was a hole in the wall behind a toilet in the women’s restroom. There was a video camera in the hole and video had been recovered.. Complaints about the hole in the wall had been made. Supreme Court properly upheld the negligence cause of action, but dismissed the negligent infliction of emotional distress cause of action:
Although it has been recognized that there may be recovery for negligent infliction of emotional distress, the elements necessary for recovery has developed through case law. This Department’s case law has held that both intentional infliction of emotional distress and negligent infliction of emotional distress require a showing of extreme and outrageous conduct.
… There is no stated rationale as to why extreme and outrageous conduct would be a required element for both an intentional act as well as a negligent act.
As such, we now hold that extreme and outrageous conduct is not an essential element of a cause of action to recover damages for negligent infliction of emotional distress.
This holding is in line with recent decisions of the Second, Third and Fourth Departments. Brown v New York Design Ctr., Inc., 2023 NY Slip Op 01228, First Dept 3-9-23
Practice Point: All four appellate division departments have now held “extreme and outrageous conduct” is not an element of negligent infliction of emotional distress.