Conway v. Brooklyn Union Gas Co.

• Decision Date: 25 January 1993
• Citation: 189 A.D.2d 851,592 N.Y.S.2d 782
• Parties: Michael CONWAY, et al., Appellants, v. BROOKLYN UNION GAS COMPANY, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 782

592 N.Y.S.2d 782

189 A.D.2d 851

Michael CONWAY, et al., Appellants, v. BROOKLYN UNION GAS COMPANY, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Jan. 25, 1993.

Fischbein Badillo Wagner, New York City (Bruce N. Lederman, of counsel), for appellants.

Cullen and Dykman, Brooklyn (Michael P. Langnado, of counsel), for respondent Brooklyn Union Gas Co.

Bivona & Cohen, P.C., New York City (Andrew Sapon, of counsel), for respondent Gas Energy Inc.

Before MANGANO, P.J., and ROSENBLATT, RITTER and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for fraud, property damage, emotional distress and breach of contract, the plaintiffs appeal from an order of the Supreme Court, Kings County (Williams, J.), dated December 4, 1990, which granted the motion of the defendant Brooklyn Union Gas Company for partial summary judgment dismissing, inter alia, the cause of action to recover damages for emotional distress and struck the demand for punitive damages asserted against it and the defendant Gas Energy, Inc.

ORDERED that the order is affirmed, with one bill of costs.

The plaintiffs allege that they have suffered severe emotional distress due to the defendants' disruption of asbestos while installing a new gas heating and hot water system. The plaintiffs contend that the defendants wantonly and maliciously refused to clean up the asbestos, causing the plaintiffs and their family to leave their home for three months, to incur unnecessary expenses, and to sustain, among other things, sleeplessness, anxiety, changes in appetite and temper, inability to concentrate, and the fear of developing cancer.

We agree that the plaintiffs have failed to establish a viable cause of action to recover damages for emotional distress. The plaintiffs have offered no evidence of asbestos contamination which might develop into cancer. While it is true that New York recognizes a cause of action to recover damages for pure emotional distress (see, Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249), the plaintiffs must produce evidence which 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). The plaintiffs have not offered any proof that they have been physically contaminated by asbestos or that they had been advised by medical personnel of the likelihood of developing cancer (see, Ferrara v. Galluchio, supra ). The claim asserted, without further proof of contamination, is far too speculative (see, Rittenhouse v. St Regis Hotel Joint Venture, 180 A.D.2d 523, 579 N.Y.S.2d 100; Gerardi v. Nuclear Utility Services, 149 Misc.2d 657, 566 N.Y.S.2d 1002; Ordway...