"The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress" ( Tsatskin v Kordonsky , 189 AD3d 1296, 1298 [2020] [internal quotation marks omitted]; seeHowell v New York Post Co. , 81 NY2d 115, 121 [1993] ). "The subject conduct must be 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" ( Klein v Metropolitan Child Servs., Inc. , 100 AD3d 708, 710 [2012] [internal quotation marks omitted]; seeFreihofer v Hearst Corp. , 65 NY2d 135, 143 [1985] ). "Furthermore, conclusory assertions are insufficient to set forth a cause of action sounding in the intentional infliction of emotional distress" ( Klein v Metropolitan Child Servs., Inc. , 100 AD3d at 711 ; seeWelsh v Haven Manor Health Care Ctr. , 15 AD3d 572 [2005] ).

Ultimately, in Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991, 373 N.E.2d 1215, the Court of Appeals adopted the Second Restatement's formulation of intentional infliction of emotional distress ( see Howell v. New York Post Co., 81 N.Y.2d at 121, 596 N.Y.S.2d 350, 612 N.E.2d 699; Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86). Accordingly, under New York law, a cause of action alleging intentional infliction of emotion distress “has four elements: (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 at 121, 596 N.Y.S.2d 350, 612 N.E.2d 699; see Klein v. Metropolitan Child Servs., Inc., 100 A.D.3d 708, 710, 954 N.Y.S.2d 559; see also 2A N.Y. PJI2d 3:6 at 54–55 [2014] ). “The first element—outrageous conduct—serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff's claim of severe emotional distress is genuine” (Howell v. New York Post Co., 81 N.Y.2d at 121, 596 N.Y.S.2d 350, 612 N.E.2d 699, citing William L. Prosser, Insult and Outrage, 44 Cal. L. Rev. 40, 44–45 [1956] ).

Intentional Infliction of Emotional Distress "The elements of [a valid claim for] intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress" (Klein v Metropolitan Child Servs., Inc., 100 AD3d 708, 710 [2d Dept 2012]; see Marmelstein v Kehillat New Hempstead: Rav Aron Jofen Community Synagogue, 11 NY3d 15, 22-23 [2008]).

The Supreme Court also properly granted that branch of the defendant's motion which was to dismiss the second cause of action, to recover damages for intentional infliction of emotional distress. "The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress" (Klein v Metropolitan Child Servs., Inc., 100 A.D.3d 708, 710). "In order to state a cause of action to recover damages for intentional infliction of emotional distress, the pleading must allege 'conduct [that] 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'" (Ratto v Oliva, 195 A.D.3d 870, 873, quoting Murphy v Amercian Home Prods. Corp., 58 N.Y.2d 293, 303).

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court should accept the alleged facts in the complaint as true and afford the proponent the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87; Baron v Galasso, 83 AD3d 626, 628; Sokol v Leader, 74 AD3d 1180, 1181). "The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress" (Klein v Metropolitan Child Servs., Inc., 100 AD3d 708, 710; see Marmelstein v Kehillat New Hempstead: Rav Aron Jofen Community Synagogue, 11 NY3d 15, 22-23; Howell v New York Post Co., 81 NY2d 115, 121; Taggart v Costabile, 131 AD3d 243, 249-250). Even accepting as true the allegations in the complaint regarding the defendants' conduct, and according the plaintiff the benefit of every possible favorable inference, the defendants' conduct was not so extreme or outrageous as to satisfy the first element of intentional infliction of emotional distress ( see Murphy v American Home Prods. Corp., 58 NY2d 293, 303; Borawski v Abulafia, 117 AD3d 662, 664-665; Klein v Metropolitan Child Servs., Inc., 100 AD3d at 710).

Here, the decedent's spouse survived him and, hence, she would be entitled to prosecute this limited claim for loss of consortium. Such a cause of action, however, does not exist independent of the injured spouse's right to maintain an action for the injuries he or she had personally sustained (see id.; Klein v Metropolitan Child Servs., Inc., 100 A.D.3d 708, 711 [2d Dept 2012]). Since the claims directly arising from the injuries that the decedent himself allegedly sustained are being dismissed for Juan Colon's lack of capacity, Reina Colon's derivative claims must be dismissed as well, since "the derivative cause of action cannot survive the dismissal of the main claims for damages" (Klein v Metropolitan Child Servs., Inc., 100 A.D.3d at 711).

In applying this standard and reasoning, the court will examine Lemon Juice's claim for intentional infliction of emotional distress. The elements of intentional infliction of emotional distress are the following: (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress (see Howell v. New York Post Co., 81 N.Y.2d 115, 121 [1993];see also Klein v. Metropolitan Child Services, Inc., 100 AD3d 708, 710 [2nd Dept 2014] ). The subject conduct must be “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” (Klein v. Metropolitan Child Services, Inc., 100 AD3d 708, 710 [2nd Dept 2014]citing Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303 [1983] ).

With regard to the unnamed Defendant's alleged behavior during the psychological safety training, during which that Defendant is alleged to have been sarcastic, lacked commitment, mocked the training, and failed to take the training seriously, (see SAC 38), the Court notes that such behavior, while inappropriate, is a far cry from extreme and outrageous conduct under New York law, see, e.g., Panchishak, 2021 WL 4429840, at *8 (concluding that the complaint did not plausibly allege extreme and outrageous conduct where a defendant “called [the p]laintiff an ‘idiot,' told him he was going to ‘fuck him in the asshole with a broomstick,' and said ‘fuck you[,]'” which conduct allegedly caused the plaintiff “severe emotional distress” (alterations adopted)); see also Klein v. Metro. Child Servs., Inc., 954 N.Y.S.2d 559, 562 (App. Div. 2012) (dismissing an IIED claim where “the cause of action . . . states little more than the conclusion that plaintiff suffered extreme and grievous mental distress as a result of the extreme and outrageous behavior of the defendants” (alterations adopted) (quotation marks omitted)). Accordingly, the Court dismisses Plaintiff's IIED claim, i.e., Claim XIV in the SAC.

Klein v. Metro. Child Servs., Inc., 100 A.D.3d 708, 710, 954 N.Y.S.2d 559, 562 (2012) (citations omitted). Defendant's conduct must be “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.” Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (internal citations and quotation marks omitted).

(“Even assuming that the disclosure of the medical records was in violation of the cited provisions of the Education Law and regulations, the defendant's alleged wrongdoing did not threaten the health or safety of the public at large.”); Coyle v. College of Westchester, Inc., 166 A.D.2d 722, 723-24 (2d Dept. 2018) (upholding dismissal of whistleblower claim for failing to allege substantial and specific danger to public health or safety where plaintiff alleged she had reported concerns that many college faculty were not qualified for their positions and that “admissions advisors were improperly pressing students to enroll in advanced degree programs for which they were not qualified.”); Klein v. Metropolitan Child Servs., Inc., 100 A.D.3d 708, 710 (2d Dept. 2012) (alleged conduct that “related mainly to alleged financial improprieties” did not qualify for whistleblower protection).