Opinion
2002-1766 D C.
Decided October 15, 2003.
Appeal by defendant from an order of the City Court, City of Poughkeepsie, Dutchess County (L. Klein, J.), entered October 23, 2002, denying defendant's motion for partial summary judgment dismissing plaintiff's claim to recover for emotional distress.
Order unanimously reversed without costs and defendant's motion for partial summary judgment dismissing the cause of action sounding in breach of a fiduciary duty is granted.
PRESENT: DOYLE, P.J., RUDOLPH and SKELOS, JJ.
In this action for breach of contract and breach of a fiduciary duty, plaintiffs allege damages as a result of defendant's admitted failure to timely make various payments for taxes and insurance from their mortgage escrow account, and for defendant's incorrect notification to them of mortgage delinquency.
Preliminarily, the court below erred in holding that the doctrine of "law of the case" bars the present summary judgment motion. The court's prior order, denying defendant's motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, found only that "plaintiff's complaint sufficiently states a cause of action" for breach of contract and breach of a fiduciary duty, and did not consider any underlying evidence. In this context, it is well settled that a later motion for summary judgment, "which searches the record and looks to the sufficiency of the underlying evidence," is proper, as different issues of law govern decision of the two motions ( Del Castillo v. Bayley Seton Hosp., 232 AD2d 602, 604).
Plaintiffs denominated their action in part as one for breach of contract, and submitted, in opposition to the motion, an affidavit of an officer of defendant which, inter alia, admitted that some escrow payments were untimely made. Issues of fact therefore exist as to whether this untimeliness rose to the level of a breach of the escrow agreement, and, if so, the amount of any resulting damages, whether pecuniary or nominal ( see generally Kronos, Inc. v. AVX Corp., 81 NY2d 90, 96). It should be noted, however, that damages for emotional distress are not recoverable in an action for breach of contract ( Fleming v. Allstate Ins. Co., 106 AD2d 426, affd on op below 66 NY2d 838).
Plaintiffs claim emotional distress as the sole item of damages for defendant's alleged breach of a fiduciary duty. However, in such an action, "[t]he circumstances under which recovery may be had for purely emotional harm are extremely limited, and, thus, a cause of action seeking such recovery must generally be premised upon a breach of duty owed directly to plaintiff which either endangered the plaintiff's physical safety or caused the plaintiff fear for his or her own physical safety" ( Lancellotti v. Howard, 155 AD2d 588; see generally Kennedy v. McKesson Co., 58 NY2d 500; Battalla v. State of New York, 10 NY2d 237). No such showing was made in this case; nor did plaintiffs demonstrate that the emotional distress at issue is "serious and verifiable" ( Bovsun v. Sanperi, 61 NY2d 219, 231), or otherwise produce evidence sufficient to demonstrate the genuineness of their claim ( Conway v. Brooklyn Union Gas Co., 189 AD2d 851).
Plaintiffs failed to raise any issue of fact in response to defendant's motion that their claimed emotional injuries rise to the required level ( see e.g. Iannotti v. Amsterdam, 225 AD2d 990). They alleged only that they suffered, in the words of Mary C. Coon's affidavit, "annoyance, inconvenience and alarm" as well as some sleepless nights. In essence, they seek compensation for time and trouble. While defendant's various failures caused plaintiffs significant aggravation, in response to defendant's motion, plaintiffs failed to produce evidence of any "serious and verifiable" emotional injury. As they failed to raise an issue of fact as to the tort element of damages., defendant's motion should have been granted dismissing the breach of a fiduciary duty cause of action.