Green v. Leibowitz
| Decision Date | 24 March 1986 |
| Citation | 118 A.D.2d 756,500 N.Y.S.2d 146 |
| Parties | Gary GREEN, Respondent, v. Ira H. LEIBOWITZ, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Montfort, Healy, McGuire & Salley, Mineola (E. Richard Rimmels, Jr., of counsel), for appellants.
William T. Hentrich, Garden City, for respondent.
Before GIBBONS, J.P., and WEINSTEIN, EIBER and KOOPER, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages, inter alia, for legal malpractice and fraud, the defendants appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Nassau County (Robbins, J.), dated December 21, 1984, as denied their motion to dismiss each of the plaintiff's causes of action pursuant to CPLR 3211(a)(7) for failure to state a cause of action, and (2) from so much of an order of the same court, dated March 15, 1985, as, in effect, upon reargument, adhered to its original determination with respect to the causes of action to recover damages for infliction of emotional distress, denied those branches of the defendants' motion which were to dismiss the plaintiff's cause of action, contained in his amended complaint, sounding in fraud, and to strike the demand for punitive damages.
Appeal from the order dated December 21, 1984, dismissed, without costs or disbursements. That order was superseded by the order dated March 15, 1985, made upon reargument.
Order dated March 15, 1985, modified, on the law, by deleting the provision thereof which adhered to its original determination with respect to the causes of action to recover damages for infliction of emotional distress and substituting therefor a provision granting the defendants' motion insofar as it is for dismissal of those causes of action. As so modified, order dated March 15, 1985, affirmed insofar as appealed from. Order dated December 21, 1984 modified accordingly.
The defendants are awarded one bill of costs.
It is fundamental that a complaint will not be dismissed on motion pursuant to CPLR 3211(a)(7) so long as, giving the plaintiff the benefit of every possible favorable inference, a cause of action is stated (see, e.g., Holly v. Pennysaver Corp., 98 A.D.2d 570, 571-572, 471 N.Y.S.2d 611). If the complaint is sufficient on its face, the motion will be denied (see, Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970). We presume, for purpose of these appeals, that the plaintiff's allegations are true (see, Cohn v. Lionel Corp., 21 N.Y.2d 559, 562, 289 N.Y.S.2d 404, 236 N.E.2d 634).
Insofar as the plaintiff claims damages for emotional distress, the complaint fails to state a cause of action for either an intentional or negligent infliction of emotional distress.
As a broad principle, recovery may be had for the intentional infliction of emotional distress where "one who, without just cause or excuse, and beyond all bounds of decency, purposely causes a disturbance of another's mental and emotional tranquility of so acute a nature that harmful physic consequences might be not unlikely to result * * * even though no demonstrable physical consequences actually ensue" (Clark v. Associated Retail Credit Men of Washington, D.C., D.C.Cir., 105 F.2d 62, 65, quoting Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv.L.Rev. 1033, 1058). The gravamen of a cause of action for the intentional infliction of emotional distress is that the conduct complained of "is especially calculated to cause, and does cause, mental distress of a very serious kind" (see, Prosser and Keeton, Torts § 12, p. 60 [5th ed], and cases cited therein). The conduct complained of in the case at bar, viz., intentional misrepresentations concerning the status and filing of the plaintiff's disability claim, does not rise to a level of "extreme outrage", nor does it exceed "all bounds usually tolerated by decent society" (Prosser and Keeton, Torts § 12, p. 60 [5th ed]; cf. Sherbak v. Doughty, 72 A.D.2d 548, 420 N.Y.S.2d 724). Nor can the plaintiff's factual allegations support a claim that the defendants' conduct was "especially calculated to cause" emotional distress (Prosser and Keeton, Torts § 12, p. 60 [5th ed] ).
We also reject the plaintiff's contention that recovery may be had for the negligent infliction of emotional distress whenever a direct duty to the plaintiff is owed and a breach of that duty results in emotional injury. While the plaintiff is correct in stating that in New York, physical injury is no longer a necessary element of a cause of action to recover damages for negligent infliction of emotional distress (see, e.g., Kennedy v. McKesson Co., 58 N.Y.2d 500, 504, 462 N.Y.S.2d 421, 448 N.E.2d 1332), nevertheless, we...
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