Pailliere v. Town of Hempstead

Full title: Nicole Pailliere, appellant, v. Town of Hempstead, et al., respondents.

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Nov 18, 2015

2015 N.Y. Slip Op. 8394 (N.Y. App. Div. 2015)

Opinion

2014-02809

11-18-2015

Nicole Pailliere, appellant, v. Town of Hempstead, et al., respondents.

Sim & Record, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. (Randy S. Nissan of counsel), for respondent Town of Hempstead. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Judy C. Selmeci of counsel), for respondent Carl C. Burnett Funeral Home, Inc.

WILLIAM F. MASTRO, J.P.

THOMAS A. DICKERSON

LEONARD B. AUSTIN

JOSEPH J. MALTESE, JJ. (Index No. 21392/10)

Sim & Record, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. (Randy S. Nissan of counsel), for respondent Town of Hempstead.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Judy C. Selmeci of counsel), for respondent Carl C. Burnett Funeral Home, Inc.

DECISION & ORDER

In an action, inter alia, to recover damages for negligent infliction of emotional distress, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Brown, J.), entered January 7, 2014, as granted those branches of the motion of the defendant Town of Hempstead and the cross motion of the defendant Carl C. Burnett Funeral Home, Inc., which were pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The Supreme Court properly granted those branches of the motion of the defendant Town of Hempstead and the cross motion of the defendant Carl C. Burnett Funeral Home, Inc., which were pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of them. Accepting the allegations in the complaint as true, and affording the plaintiff the benefit of every favorable inference (see Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881, 884; Leon v Martinez, 84 NY2d 83, 87-88), the complaint failed to state a cause of action to recover damages for negligent infliction of emotional distress (see Schultes v Kane, 50 AD3d 1277, 1278; Estate of LaMore v Sumner, 46 AD3d 1262, 1264). The complaint also failed to state a cause of action to recover damages for desecration of a grave (see Toppin v Town of Hempstead, 121 AD3d 883, 884; Brandenburg v St. Michael's Cemetery, 92 AD3d 631, 632).

MASTRO, J.P., DICKERSON, AUSTIN and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court