Summary
rejecting emotional distress claim based on use of hospital documents to allege extramarital affair
Summary of this case from Bender v. City of New YorkOpinion
October 2, 1995
Appeal from the Supreme Court, Nassau County (McCaffrey, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the branch of the motion which was to dismiss the cause of action to recover damages for intentional infliction of emotional distress is granted, and the complaint is dismissed.
The plaintiff commenced the instant action alleging invasion of privacy and intentional infliction of emotional distress after the defendant obtained two hospital documents showing that the plaintiff underwent a vasectomy and used the documents as an exhibit to a motion the defendant made in an action for divorce. The documents were used to support the defendant's contention that his wife was having an affair with the plaintiff. The Supreme Court granted the branch of the defendant's motion which was to dismiss the cause of action to recover damages for invasion of privacy but denied the branch of the motion which was to dismiss the cause of action for intentional infliction of emotional distress.
We agree with the defendant that the court erred in denying the branch of his motion which was to dismiss the cause of action alleging intentional infliction of emotional distress. It is well established that the tort of intentional infliction of emotional distress consists of 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 115, 121). "`Liability has been found only where the conduct 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'" (Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, quoting Restatement [Second] of Torts § 46, comment d).
Here, while the defendant's conduct in obtaining and using the documents in his matrimonial action is not to be condoned, it did not rise to a level which would satisfy the "extreme and outrageous conduct" element of the cause of action (see, Howell v. New York Post Co., supra, at 121; Freihofer v. Hearst Corp., 65 N.Y.2d 135; Waldron v. Ball Corp., 210 A.D.2d 611; Carpenter v City of Plattsburgh, 105 A.D.2d 295, affd 66 N.Y.2d 791). "Not every deplorable act * * * is redressable in damages" (Madden v Creative Servs., 84 N.Y.2d 738, 746).
In view of our finding that the complaint fails to state a cause of action alleging intentional infliction of emotional distress, we need not reach the parties' remaining contentions. Bracken, J.P., Balletta, Pizzuto and Hart, JJ., concur.