Summary
noting that "a claim must fail, where, as here, no allegations of negligence appear in the pleadings," in a case where the allegations of conduct consisted of allegations that the defendant attacked him with a hammer while using racial and ethnic slurs, conduct that the court characterized as intentional
Summary of this case from Ryle v. Rehrig Pac. Co.Opinion
2014-05-7
Travis SANTANA, appellant, v. William LEITH, respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Karasyk & Moschella, LLP, New York, N.Y. (James M. Moschella of counsel), for respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Karasyk & Moschella, LLP, New York, N.Y. (James M. Moschella of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for negligent infliction of emotional distress, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Fusco, J.), dated June 18, 2013, as granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On September 22, 2009, the defendant allegedly attacked the plaintiff with a hammer, while using racial and ethnic slurs. Nearly three years later, after the statute of limitations to recover damages on an intentional tort theory had expired, the plaintiff commenced this action to recover damages for negligent infliction of emotional distress. The defendant moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action, and the Supreme Court granted that branch of his motion.
“On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” ( Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703–704, 864 N.Y.S.2d 70;see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; Sacher v. Beacon Assoc. Mgt. Corp., 114 A.D.3d 655, 980 N.Y.S.2d 121;Young v. Brown, 113 A.D.3d 761, 978 N.Y.S.2d 867). Under this standard, the complaint fails to state a cause of action to recover damages for negligent infliction of emotional distress.
A cause of action to recover damages for negligent infliction of emotional distress, which no longer requires physical injury as a necessary element, “generally must be premised upon the breach of a duty owed to [the] plaintiff which either unreasonably endangers the plaintiff's physical safety, or causes the plaintiff to fear for his or her own safety” ( Sheila C. v. Povich, 11 A.D.3d 120, 130, 781 N.Y.S.2d 342;see Jason v. Krey, 60 A.D.3d 735, 736, 875 N.Y.S.2d 194;Davidovici v. Fritzson, 49 A.D.3d 488, 490, 853 N.Y.S.2d 594;Gaylord v. Fiorilla, 28 A.D.3d 713, 713–714, 813 N.Y.S.2d 534;Lipton v. Unumprovident Corp., 10 A.D.3d 703, 706, 783 N.Y.S.2d 601;Savva v. Longo, 8 A.D.3d 551, 552, 779 N.Y.S.2d 129;E.B. v. Liberation Publs., 7 A.D.3d 566, 567, 777 N.Y.S.2d 133). “Such a claim must fail, where, as here, ‘no allegations of negligence appear in the pleadings' ” ( Daluise v. Sottile, 40 A.D.3d 801, 803, 837 N.Y.S.2d 175, quoting Russo v. Iacono, 73 A.D.2d 913, 913, 423 N.Y.S.2d 253). Here the plaintiff's allegations in the verified complaint that the defendant “deliberately and violently” attacked him with a hammer, while using racial and ethnic slurs, are premised on intentional conduct and not negligence. Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.