Opinion
239 CA 19-01689
08-20-2020
Michael MAAK, Plaintiff-Respondent, v. MEDINA PROFESSIONAL FIREFIGHTERS ASSOCIATION, IAFF LOCAL 2161, Defendant, Steven Cooley, Individually, and as President of Medina Professional Firefighters Association, IAFF Local 2161 and Matthew Jackson, Individually, and as Vice President of Medina Professional Firefighters Association, IAFF Local 2161, Defendants-Appellants.
THE SAMMARCO LAW FIRM, LLP, BUFFALO (ANDREA L. SAMMARCO OF COUNSEL), FOR DEFENDANTS-APPELLANTS. CULLEY, MARKS, TANENBAUM & PEZZULO, LLP, ROCHESTER (GLENN E. PEZZULO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
THE SAMMARCO LAW FIRM, LLP, BUFFALO (ANDREA L. SAMMARCO OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
CULLEY, MARKS, TANENBAUM & PEZZULO, LLP, ROCHESTER (GLENN E. PEZZULO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the amended complaint is dismissed in its entirety.
Memorandum: Plaintiff commenced this action against defendant Medina Professional Firefighters Association, IAFF Local 2161 (Firefighters Association), defendant Steven Cooley, individually, and as president of the Firefighters Association, and defendant Matthew Jackson, individually, and as vice president of the Firefighters Association, seeking damages for, inter alia, intentional infliction of emotional distress and prima facie tort. According to plaintiff, Cooley and Jackson (defendants) made false and disparaging comments concerning plaintiff's performance in the course of his employment with the Village of Medina Fire Department. A prior order dismissed all causes of action except those asserted against defendants individually for intentional infliction of emotional distress and prima facie tort. Defendants now appeal from an order denying their motion for summary judgment dismissing those remaining causes of action. We reverse.
Defendants established their entitlement to summary judgment dismissing the cause of action for intentional infliction of emotional distress by demonstrating that their conduct was not so extreme or outrageous "as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" ( Cooper v. Hodge , 28 A.D.3d 1149, 1151, 814 N.Y.S.2d 447 [4th Dept. 2006] [internal quotation marks omitted]; see generally Kondo-Dresser v. Buffalo Pub. Schools , 17 A.D.3d 1114, 1115, 794 N.Y.S.2d 768 [4th Dept. 2005] ). In opposition, plaintiff failed to raise a material issue of fact (see Cleveland v. Perry , 175 A.D.3d 1017, 1019, 108 N.Y.S.3d 602 [4th Dept. 2019] ).
Defendants are entitled to summary judgment dismissing the cause of action for prima facie tort because it is based on the same conduct as both the cause of action for intentional infliction of emotional distress and a previously dismissed cause of action for defamation, and it is thus duplicative of those causes of action (see Ripka v. County of Madison , 162 A.D.3d 1371, 1373, 80 N.Y.S.3d 479 [3d Dept. 2018] ; Bacon v. Nygard , 140 A.D.3d 577, 578, 35 N.Y.S.3d 25 [1st Dept. 2016] ; see generally Freihofer v. Hearst Corp. , 65 N.Y.2d 135, 142-143, 490 N.Y.S.2d 735, 480 N.E.2d 349 [1985] ). Moreover, defendants also established their entitlement to summary judgment on the cause of action for prima facie tort by demonstrating a lack of special damages, and plaintiff failed to raise an issue of fact in opposition (see generally Mancuso v. Allergy Assoc. of Rochester , 70 A.D.3d 1499, 1501, 895 N.Y.S.2d 756 [4th Dept. 2010] ; Vigoda v. DCA Prods. Plus , 293 A.D.2d 265, 266, 741 N.Y.S.2d 20 [1st Dept. 2002] ).