Opinion
459 CA 18–01877
05-03-2019
Gail G. FELLOWS, Plaintiff–Respondent, v. Dolores ROSATI and Rocco Rosati, Defendants–Appellants.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order and judgment so appealed from is affirmed without costs.
Memorandum: On appeal from an order and judgment that awarded plaintiff money damages following a nonjury trial, we reject defendants' contention that the evidence is legally insufficient to establish that plaintiff suffered severe emotional distress. Although severe emotional distress is an element of the tort of intentional infliction of emotional distress (see Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993] ), Supreme Court properly concluded that plaintiff was not required to present objective medical evidence in order to establish that element of her cause of action (see Zane v. Corbett, 82 A.D.3d 1603, 1608, 919 N.Y.S.2d 625 [4th Dept. 2011] ).
All concur except Carni, J., who dissents and votes to reverse in accordance with the following memorandum:
I respectfully dissent. Not all emotional distress is actionable, and thus the tort of intentional infliction of emotional distress requires, inter alia, a showing of "severe emotional distress" ( Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993] [emphasis added] ). A plaintiff alleging that he or she has sustained severe emotional distress must substantiate that injury, a burden that generally requires the production of medical evidence (see Cusimano v. United Health Servs. Hosps., Inc., 91 A.D.3d 1149, 1152, 937 N.Y.S.2d 413 [3d Dept. 2012], lv denied 19 N.Y.3d 801, 2012 WL 1500604 [2012] ; Roche v. Claverack Coop. Ins. Co., 59 A.D.3d 914, 918, 874 N.Y.S.2d 592 [3d Dept. 2009] ; Millan v. City of New York, 16 A.D.3d 290, 290, 791 N.Y.S.2d 419 [1st Dept. 2005] ). Here, plaintiff failed to present medical evidence that she sustained an injury or sought medical treatment as a result of defendants' conduct. Although I agree with the majority that medical proof is not required in all cases in order to establish severe emotional distress, in my view this case does not inherently present a "likelihood of genuine and serious mental distress, arising from the special circumstances" ( Zane v. Corbett, 82 A.D.3d 1603, 1608, 919 N.Y.S.2d 625 [4th Dept. 2011] [internal quotation marks omitted] ). Absent medical evidence, therefore, plaintiff's proof here was insufficient to establish that she suffered severe emotional distress and thus insufficient to establish her cause of action (see Cusimano, 91 A.D.3d at 1152, 937 N.Y.S.2d 413 ).