Brown v. N.Y. Design Ctr., Inc.

Docket NumberAppeal No. 17203,Index No. 155964/14,Case No. 2022-01472
Decision Date09 March 2023
Citation185 N.Y.S.3d 97
Parties Mabel Johanna BROWN et al., Plaintiffs-Respondents-Appellants, v. NEW YORK DESIGN CENTER, INC., Defendant-Appellant-Respondent, Newmark Knight Frank Global Management Services, LLC, et al., Defendants.
CourtNew York Supreme Court — Appellate Division

Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Nicole Boeckle and Erin L. O'Dea of counsel), for appellant-respondent.

German Rubenstein LLP, New York (Steven J. German of counsel), for respondents-appellants.

Dianne T. Renwick, J.P., Troy K. Webber, Anil C. Singh, Julio Rodriguez III, John R. Higgitt, JJ.

Webber, J.

In this appeal, we are called upon to revisit our prior decisions regarding the showing necessary to sustain a cause of action for negligent infliction of emotional distress.

Plaintiffs Mabel Johanna Brown and "Jane Does 1-16" commenced this lawsuit, interposing causes of action pursuant to negligence, a violation of New York General Business Law § 395-B, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent hiring.

Plaintiffs all worked at 200 Lexington Avenue in Manhattan, a building owned by defendant New York Design Center (NYDC) that houses various showrooms for home finishes, fixtures, and furnishings. In April 2014, NYDC's electrician, while using the men's room on the sixth floor, discovered a camera with a recording device that was pointed through the wall and into a hole in the wall of a stall in the adjacent women's restroom. The hole in the women's restroom had been created by breaking tiles around a plumbing pipe. The New York City Police Department (NYPD) retrieved the device, which contained graphic videos of women using the bathroom. It was not determined if other videos existed or if any footage had been disseminated.

Plaintiffs all testified that they observed the hole in the bathroom wall prior to the discovery of the camera. One plaintiff testified that she had first seen the hole two to six months before the camera's discovery and complained to an employee of NYDC's building manager about the state of the bathroom, including that the tiles on the wall behind the toilet were broken and there was a hole. While she could not recall exactly when she complained about the hole, she stated, however, that it was definitely prior to the camera's discovery. A second plaintiff testified that she complained to her supervisor about the broken tiles and a third plaintiff testified that she complained to her colleagues about the condition of the bathroom, including the hole behind the toilet. A fourth plaintiff testified that before the camera was discovered she complained to her manager, who then complained to someone from the building, that there was a grapefruit sized hole behind one of the toilets. Other plaintiffs also testified as to their observation of the hole prior to its discovery; however, they stated that they did not lodge a complaint.

The videos do not show the faces of any of the women recorded. Of the 14 plaintiffs, 10 could not identify themselves in those portions of the videos retrieved by NYPD. The remaining four plaintiffs identified themselves in the videos based on underwear, skin color, shoes, legs, clothing, and other distinguishing characteristics.

One plaintiff testified that the women decided to file suit as "Jane Does" because they were extremely embarrassed and humiliated and did not "want their names being out in the press or on any kind of documents where people could find out it was them." She stated that they did not want others to know what had happened, especially because they did not know whether there were any additional videos and whether videos of them would ultimately be disseminated or appear on the Internet. Plaintiffs testified that when they learned of the videos they were upset, disgusted, mortified, distraught, felt violated, and ashamed. Plaintiffs all testified to paranoia and/or hypervigilance, many engaging in behavior such as habitually checking vents or looking for other spaces where cameras could be hidden, especially in public restrooms, dressing rooms, and hotel rooms.

Defendant NYDC moved for summary judgment dismissing the complaint, arguing that plaintiffs’ negligence claim failed as they had not shown that defendant was on notice of the camera and because plaintiffs did not suffer any legally compensable injuries. With regard to the claim of negligent infliction of emotional distress, NYDC argued that its conduct was not outrageous, and plaintiffs did not fear for their safety—both necessary elements of such a claim.

Plaintiffs opposed, arguing that NYDC had actual and constructive notice of the peephole, and that they had adduced evidence of suffering from paranoia, shame, and feeling violated. Plaintiffs argued that General Business Law § 395-b creates an affirmative duty for the owners and managers of any premises regarding viewing devices and violating that duty can form the basis for a claim for negligent infliction of emotional distress.

Summary judgment was correctly denied as to the negligence claim (see Topor v. State of New York , 176 Misc.2d 177, 182, 671 N.Y.S.2d 584 [Ct. Cl. 1997] ; see also Hering v. Lighthouse 2001, LLC , 21 A.D.3d 449, 451, 799 N.Y.S.2d 825 [2d Dept. 2005] ). The motion court correctly found that there was sufficient evidence that defendant was on notice of the hole and or the recording device. Plaintiffs testified that the hole was the size of a grapefruit and had been present two to six months prior to the inadvertent discovery of the device. There was also testimony that one of the plaintiffs complained to an employee of defendant's building manager regarding the hole prior to the discovery. As noted by Supreme Court, defendant conceded that its employees conducted regular inspections and cleanings of the restroom, yet defendant offered no testimony from those employees to refute allegations of constructive notice. Clearly, the condition as described, warranted further investigation to determine whether the hole was being used for surreptitious viewing, especially in that there was no other explanation as to why portions of tile were suddenly missing from the wall which was shared with the men's restroom.

Contrary to defendant's argument, the record supports a determination that plaintiffs sustained emotional injuries which are compensable in their negligence cause of action. Emotional injury is generally compensable only when it is the direct, rather than consequential, result of the breach of a duty owed (see Kennedy v. McKesson Co., 58 N.Y.2d 500, 506, 462 N.Y.S.2d 421, 448 N.E.2d 1332 [1983] ; Probst v. Cacoulidis , 295 A.D.2d 331, 332, 743 N.Y.S.2d 509 [2d Dept. 2002] ). While there may be recovery for emotional trauma in the absence of physical injury, evidence must be produced that is sufficient to guarantee the genuineness of the claim (see Johnson v. State of New York , 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590 [1975] ; Kaufman v. Physical Measurements, Inc., 207 A.D.2d 595, 615 N.Y.S.2d 508 [3d Dept. 1994] ). Here, plaintiffs testified to humiliation, embarrassment, feelings of being violated, and paranoia. Their fears are certainly reasonable since it is not known whether additional copies of the videos exist, who may be in possession of the videos and whether the videos may ultimately be posted on any number of Internet sites. Plaintiffs’ psychological traumas are readily and unquestionably understandable, evidencing "an especial likelihood of genuine and serious mental distress, arising from the special circumstances" ( Johnson v. State of New York , 37 N.Y.2d at 382, 372 N.Y.S.2d 638, 334 N.E.2d 590 [internal quotation marks omitted]; see also e.g. Landon v. Kroll Lab. Specialists, Inc. , 22 N.Y.3d 1, 7-8, 977 N.Y.S.2d 676, 999 N.E.2d 1121 [2013] ; Martinez v. Long Is. Jewish Hillside Med. Ctr. , 70 N.Y.2d 697, 699, 518 N.Y.S.2d 955, 512 N.E.2d 538 [1987] ; Lando v. State of New York , 39 N.Y.2d 803, 385 N.Y.S.2d 759, 351 N.E.2d 426 [1976] ).

Relying upon this Court's decision in Sheila C. v. Povich , 11 A.D.3d 120, 130-131, 781 N.Y.S.2d 342 (1st Dept. 2004), Supreme Court dismissed plaintiffs’ claims for negligent infliction of emotional distress. In Sheila C ., this Court concluded that the existence of extreme and outrageous conduct is a necessary element for a claim of negligent infliction of emotional distress. Other courts also adopted this conclusion.

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" ( Howell v. New York Post Co. , 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993] ; see Klein v. Metropolitan Child Servs., Inc. , 100 A.D.3d 708, 710, 954 N.Y.S.2d 559 [2d Dept. 2012] ; see also 2A NY PJI2d 3:6 at 54-55 [2014]).

While the Court of Appeals initially denied recovery for negligent infliction of emotional distress ( Mitchell v. Rochester Ry. Co. , 151 N.Y. 107, 110 [1896] ), the Court overruled Mitchell , stating that "a rigorous application of [the] rule [prohibiting recovery for negligently caused emotional distress] would be unjust, as well as opposed to experience and logic" ( Battalla v. State of New York , 10 N.Y.2d 237, 239, 219 N.Y.S.2d 34, 176 N.E.2d 729 [1961] ). The Court reasoned that Mitchell departed from the fundamental axiom of the common law that "a wrong-doer is responsible for the natural and proximate consequences of his misconduct" and that "one may seek redress for every substantial wrong" ( Battalla at 240, 219 N.Y.S.2d 34, 176 N.E.2d 729 [internal quotation marks omitted]).

Although it has been recognized that there may be recovery for...

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