Opinion
2016–07245 Claim No. 127223
11-28-2018
David W. ROSS, Appellant, v. STATE UNIVERSITY OF NEW YORK, et al., Respondents.
David W. Ross, New York, NY, appellant pro se. Barbara D. Underwood, Attorney General, New York, N.Y. (Steven C. Wu and David Lawrence III of counsel), for respondents.
David W. Ross, New York, NY, appellant pro se.
Barbara D. Underwood, Attorney General, New York, N.Y. (Steven C. Wu and David Lawrence III of counsel), for respondents.
MARK C. DILLON, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In a claim, inter alia, to recover damages for defamation, the claimant appeals from an order of the Court of Claims (Alan C. Marin, J.), dated May 10, 2016. The order denied the claimant's motion pursuant to Court of Claims Act § 10(6) for leave to file a late claim, and granted the defendants' cross motion to dismiss the claim.
ORDERED that the order is affirmed, with costs.
The claimant, a physician at SUNY Downstate Medical Center, appeals from an order which denied his motion for leave to file a late claim against the State of New York, alleging, inter alia, defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, tortious interference with business relations, and conspiracy. The order also granted the defendants' cross motion to dismiss the claim. We affirm on the ground that the claim is not meritorious (see Court of Claims Act § 10[6] ; Borawski v. State of New York, 128 A.D.3d 628, 629, 8 N.Y.S.3d 399 ).
The claim failed to set forth a potentially meritorious defamation cause of action, since the statements in the emails upon which the defamation allegations are based—stating that the claimant was not allowed to supervise residents—were nonactionable directives, were true when made, and were not reasonably susceptible to a defamatory connotation (see Wilcox v. Newark Val. Cent. School Dist., 74 A.D.3d 1558, 1561, 904 N.Y.S.2d 523 ; Serratore v. American Port Servs., 293 A.D.2d 464, 465, 739 N.Y.S.2d 452 ; Chang v. Fa–Yun, 265 A.D.2d 265, 697 N.Y.S.2d 31 ; Kraus v. Brandstetter, 167 A.D.2d 445, 447, 562 N.Y.S.2d 127 ).
Moreover, "public policy prohibits claims against the State for intentional infliction of emotional distress" ( Sawitsky v. State of New York, 146 A.D.3d 914, 915, 46 N.Y.S.3d 123 ; see Peterec v. State of New York, 124 A.D.3d 858, 859, 998 N.Y.S.2d 900 ). Further, the claim did not set forth a potentially meritorious cause of action to recover damages for negligent infliction of emotional distress since the alleged conduct at issue cannot be said to have unreasonably endangered the claimant's physical safety or caused him to fear for his safety, even if it was distressing to him (see Passucci v. Home Depot, Inc., 67 A.D.3d 1470, 1471, 889 N.Y.S.2d 353 ; Ben–Zvi v. Kronish Lieb Weiner & Hellman, 278 A.D.2d 167, 718 N.Y.S.2d 328 ).
The claim also did not set forth a viable cause of action to recover damages for tortious interference with business relations, as it alleged wrongful conduct directed at the claimant, and not toward a third party with whom he had or sought a business relationship (see Carvel Corp. v. Noonan, 3 N.Y.3d 182, 192, 785 N.Y.S.2d 359, 818 N.E.2d 1100 ).
Finally, since no valid underlying tort was alleged, there was no cause of action to recover damages for conspiracy (see Arvanitakis v. Lester, 145 A.D.3d 650, 652, 44 N.Y.S.3d 71 ).
Accordingly, we agree with the Court of Claims' determination denying the claimant's motion pursuant to Court of Claims Act § 10(6) for leave to file a late claim, and granting the defendants' cross motion to dismiss the claim.
DILLON, J.P., ROMAN, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.