Stephens v. Shuttle Associates, L.L.C.

• Decision Date: 10 April 2008
• Docket Number: No.07 Civ. 5614.,07 Civ. 5614.
• Parties: Robin STEPHENS, Plaintiff, v. SHUTTLE ASSOCIATES, L.L.C., Supershuttle International, Inc., New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority, and Bus Operator Gregory, Defendants.
• Court: U.S. District Court — Southern District of New York

547 F.Supp.2d 269

Robin STEPHENS, Plaintiff, v. SHUTTLE ASSOCIATES, L.L.C., Supershuttle International, Inc., New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority, and Bus Operator Gregory, Defendants.

No.07 Civ. 5614.

United States District Court, S.D. New York.

April 10, 2008.

Decision Denying Reconsideration April 23, 2008.

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Aaron David Frishberg, Aaron David Frishberg, Esq., New York, NY, for Plaintiff.

Ann Burton Goetcheus, New York City Transit Authority, New York, NY, for Defendants.

DECISION AND ORDER

VICTOR MARRERO, District Judge.

Plaintiff Robin Stephens ("Stephens") brought this action against defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority (collectively, "Transit Defendants"), Shuttle Associates, L.L.C. and SuperShuttle International, Inc. ("collectively, `SuperShuttle Defendants'"), and Bus Operator Gregory ("Gregory")¹ alleging intentional infliction of emotional distress, failure to train and violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), Rehabilitation Act, 29 U.S.C. § 794 et seq. (the "Rehabilitation Act"), New York City Human Rights Law, N.Y. Admin. Code § 8-101 (the "NYCHRL"); and New York State Human Rights Law, Executive Law § 290 et seq. (the "NYSHRL"). Transit Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"). For the reasons stated below, Transit Defendants' motion to dismiss is GRANTED. Because Transit Defendants' arguments apply with equal force to Gregory, the Court dismisses, sua sponte, the complaint as against Gregory. See Leonhard v. United States, 633 F.2d 599, 609 n. 11 (2d Cir.1980) (citations omitted).

I. BACKGROUND

The facts summarized below are taken primarily from the Second Amended Complaint ("Amended Complaint") dated January 8, 2008, which the Court accepts as true for the purpose of ruling on the motion to dismiss. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.2001)).

Stephens has a disability, which impairs her ability to walk, and she uses a power wheelchair. Her disability also impairs her speech. Many people have trouble understanding Stephens when she speaks, although most people can understand her if they listen carefully and persistently.

On or about April 9, 2006 at approximately 5:00 p.m., Stephens boarded a bus operated by Transit Defendants. Gregory, the bus operator, asked Stephens to power off her wheelchair. Stephens asked Gregory why she had to turn the power off but Gregory did not explain. Instead, Gregory repeated his request that Stephens power off her wheelchair. When Stephens would not comply with Gregory's request, Gregory announced to the other bus passengers that they would have to exit the bus and take the next bus because Stephens would not power off her wheelchair. After approximately forty minutes, a supervisor § the "Supervisor") arrived on the scene and relieved Gregory. The Supervisor advised Stephens that she would not have to power off her wheelchair and, after asking Stephens's permission, secured Stephens's wheelchair to the bus. The Supervisor then drove the bus directly to Stephens's destination.

II. DISCUSSION

A. STANDARD OF REVIEW

In considering a motion to dismiss pursuant to Rule 12(b)(6), a court construes the complaint broadly, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor." Chambers, 282 F.3d at 152. However, mere "conclusions of law or unwarranted deductions of fact" need not be accepted as true. First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir.1994) (citation and quotation marks omitted). A court should not dismiss a complaint for failure to state a claim if the factual allegations sufficiently "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007).

B. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

To state a claim for intentional infliction of emotional distress, a plaintiff must plead "(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, 596 N.Y.S,2d 350, 612 N.E.2d 699, 702 (N.Y.1993). "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," Wiener v. Unumprovident Corp., 202 F.Supp.2d 116, 122 (S.D.N.Y.2002) (citing Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86, 90 (1983)). Under New York law, "`([o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.'" Freihofer v. Hearst Corp., 65 N.Y.2d 135, 490 N.Y.S.2d 735, 480 N.E.2d 349, 355 (1985) (quoting Restatement (Second) of Torts § 46(1977)).

Stephens alleges that Gregory, acting within the scope of his employment by Transit Defendants, intentionally inflicted emotional distress, causing her injury. Transit Defendants move to dismiss Stephens's claim on the grounds that Stephens fails to state a claim for intentional infliction of emotional distress, or in the alternate, that Stephens did not comply with the requirements set forth in General Municipal Law § 50-e(2) and New York Authorities Law § 1215(5) because Stephens failed to provide accurate information in the Notice of Claim she filed in this action and failed to appear for a statutory hearing scheduled by Transit Defendants.

Even assuming the allegations in Stephens's Amended Complaint are true and drawing all reasonable inferences in her favor, the Court; finds that Stephens has failed to sufficiently plead a claim for intentional infliction of emotion distress. Stephens has not alleged any facts suggesting that Gregory's conduct was "extreme and outrageous." Wiener, 202 F.Supp.2d at 122. The Court is not persuaded that when Gregory told Stephens to power off her wheelchair without explaining why and ultimately delayed her transportation approximately forty minutes, Gregory's conduct was "`so severe that no reasonable man could be expected to endure it.'" Id. (quoting Restatement (Second) of Torts § 46 cmt. j (1977)); see also Stauber v. New York City Transit Auth., 10 A.D.3d 280, 781 N.Y.S.2d 26, 27 (App. Div. 1st Dep't 2004) (finding that the bus driver's rudeness and profanity did "not meet the extreme and outrageous conduct standard for the imposition of liability for infliction of emotional distress, whether intentionally ... or negligently") (citations and quotation marks omitted). And Stephens's conclusory allegation that Gregory intentionally inflicted emotional distress is insufficient as a matter of law. See Twombly, 127 S.Ct. at 1964-65 (stating that a complaint must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"); see also Davis v. City of New York, No. 00 Civ. 4309, 2000 WL 1877045, at *10 (S.D.N.Y. Dec.27, 2000) (stating that "[m]ere conclusory allegations are insufficient as a matter of law to support a claim for intentional infliction of emotional distress.") (citing Ruffolo v. Oppenheimer & Co., No. 90 Civ. 4593, 1991 WL 17857, at *2 (S.D.N.Y. Feb.5, 1991), aff'd, 949 F.2d 33 (2d Cir.1991)). Accordingly Stephens's claim for intentional infliction of emotional distress against Transit Defendants and Gregory is dismissed. Because this claim is dismissed for failure to state a claim, the Court will not address the merits of the additional defenses asserted.

C. FAILURE TO TRAIN

Although it is unclear from the Amended Complaint the specific cause of action Stephens is asserting with respect to her allegations that Transit Defendants failed to adequately train their personnel, the Court considers the claim to be grounded in negligence.² To state a claim for negligence a plaintiff must plead that "(1) the defendant owed the plaintiff a cognizable duty of care; (2) the defendant breached that duty; and (3) the plaintiff suffered damage as a proximate result of that breach." Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir.2006) (citations omitted); see also Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir.2000); Vega v. Fox, 457 F.Supp.2d 172,182-83 (S.D.N.Y.2006).

Stephens alleges that Transit Defendants failed to train "their personnel to proficiency to properly assist and treat individuals with disabilities ... with appropriate attention to the difference among individuals with disabilities, causing [Stephens] to be discriminated against and to be emotionally injured." (Am.Compl. ¶ 88.) However, "`[r]ecovery for purely emotional damages is extremely limited.'" Jones v. Commerce Bancorp, Inc., No. 06 Civ. 835, 2006 WL 1409492, at *4 (S.D.N.Y. May 23, 2006) (quoting Ornstein v. New York City Health & Hosps., 27 A.D.3d 180, 806 N.Y.S.2d 566, 568 (App. Div. 1st Dep't 2006)); see also Howell, 596 N.Y.S.2d 350, 612 N.E.2d at 701; Johnson v. State, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590, 591-93 (1975).

A plaintiff suffering purely emotional injury may recover on a theory of negligent infliction of emotional distress if either "(1) a bystander who was in the zone of danger suffers emotional trauma as a result of their observations or (2) the defendant breaches a direct duty to plaintiff which results in emotional injury to the plaintiff." In re Air Crash Disaster at Cove Neck, Long Island, N.Y. on Jan. 25, 1990, 885...