Opinion
2014-05-7
Darota BORAWSKI, etc., appellant, v. Ovadia ABULAFIA, etc., et al., respondents.
Dean T. Cho, New York, N.Y., for appellant. Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu and Matthew W. Grieco of counsel), for respondents.
Dean T. Cho, New York, N.Y., for appellant. Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu and Matthew W. Grieco of counsel), for respondents.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and COLLEEN D. DUFFY, JJ.
In an action, inter alia, to recover damages for breach of contract and wrongful termination of employment, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Agate, J.), dated August 1, 2012, as granted those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the causes of action alleging breach of contract, wrongful termination of employment, defamation, intentional infliction of emotional distress, discrimination in employment in violation of Administrative Code of the City of New York § 8–107(7), and promissory estoppel insofar as asserted against the defendant Ovadia Abulafia.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging defamation insofar as asserted against the defendant Ovadia Abulafia, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the respondents.
The plaintiff, who is an obstetrician and gynecologist formerly employed by the defendant SUNY Downstate Medical Center (hereinafter SUNY Downstate), commenced this action, inter alia, to recover damages for breach of contract, wrongful termination of employment, defamation, intentional infliction of emotional distress, discrimination in employment in violation of Administrative Code of the City of New York § 8–107(7), and promissory estoppel. She alleged that SUNY Downstate and the defendant Ovadia Abulafia, who was the chairperson of SUNY Downstate's Department of Obstetrics and Gynecology (hereinafter the Department), breached the terms of her employment agreement and SUNY Downstate's written policies when they terminated her fellowship and constructively terminated her employment in retaliation for her written complaint to Abulafia about excessive duty hours. The plaintiff also alleged that the defendants breached certain promises made to induce her to accept the fellowship position, and that her employment and fellowship were wrongfully terminated by the defendants in violation of their agreement to adhere to pertinent statutes, rules, regulations, and policies concerning duty hours and retaliation. Further, the complaint alleged, among other things, that Abulafia made defamatory statements to prospective employers regarding the plaintiff's professional conduct, and that the “defendants' aforesaid wrongful conduct” was extreme and outrageous, causing the plaintiff to suffer significant emotional distress.
The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the grounds of lack of subject matter jurisdiction ( seeCPLR 3211[a][2] ) and failure to state a cause of action ( seeCPLR 3211[a][7] ). The Supreme Court, among other things, granted those branches of the motion which were to dismiss the causes of action to recover damages for breach of contract, wrongful termination of employment, promissory estoppel, defamation, and intentional infliction of emotional distress insofar as asserted against Abulafia, concluding that it lacked subject matter jurisdiction over those causes of action. The plaintiff appeals.
“The Court of Claims has limited jurisdiction to hear actions against the State itself, or actions naming State agencies or officials as defendants, where the action is, in reality, one against the State—i.e., where the State is the real party in interest” ( Morell v. Balasubramanian, 70 N.Y.2d 297, 300, 520 N.Y.S.2d 530, 514 N.E.2d 1101;see Starker v. Trump Vil. Section 4, Inc., 104 A.D.3d 937, 937–938, 960 N.Y.S.2d 912). Generally, “[t]he Court of Claims has exclusive jurisdiction over actions for money damages against State agencies, departments, and employees acting in their official capacity in the exercise of governmental functions” ( Dinerman v. NYS Lottery, 58 A.D.3d 669, 669, 870 N.Y.S.2d 792;seeCourt of Claims Act § 9[2]; Morell v. Balasubramanian, 70 N.Y.2d at 300, 520 N.Y.S.2d 530, 514 N.E.2d 1101;Matter of Peterson v. New York City Dept. of Envtl. Protection, 66 A.D.3d 1027, 1028–1029, 887 N.Y.S.2d 269). “Where, however, the suit against the State agent or officer is in tort for damages arising from the breach of a duty owed individually by such agent or officer directly to the injured party, the State is not the real party in interest—even though it could be held secondarily liable for the tortious acts under respondeat superior” ( Morell v. Balasubramanian, 70 N.Y.2d at 301, 520 N.Y.S.2d 530, 514 N.E.2d 1101).
Contrary to the plaintiff's contention, the Supreme Court properly granted those branches of the defendants' motion which were to dismiss the causes of action to recover damages for breach of contract, wrongful termination of employment, and promissory estoppel insofar as asserted against Abulafia, correctly concluding that it lacked subject matter jurisdiction to entertain those cases of action insofar as asserted against Abulafia, as those causes of action arose from acts performed, and determinations made, by Abulafia as a State employee acting in his official capacity ( see Morell v. Balasubramanian, 70 N.Y.2d at 300–301, 520 N.Y.S.2d 530, 514 N.E.2d 1101;Cavanaugh v. Doherty, 243 A.D.2d 92, 98–99, 675 N.Y.S.2d 143). In connection with the causes of action alleging defamation and intentional infliction of emotional distress, however, the complaint sufficiently alleged the breach of duties owed directly to the plaintiff by Abulafia in his personal capacity ( see Morell v. Balasubramanian, 70 N.Y.2d at 301–302, 520 N.Y.S.2d 530, 514 N.E.2d 1101;Cavanaugh v. Doherty, 243 A.D.2d at 101, 675 N.Y.S.2d 143). Thus, the Supreme Court had subject matter jurisdiction to entertain those causes of action insofar as asserted against Abulafia.
In light of its holding that the cause of action alleging intentional infliction of emotional distress was subject to dismissal for lack of subject matter jurisdiction, the Supreme Court did not address the argument, now urged by Abulafia as an alternative ground for affirmance, that the complaint fails to state a cause of action against Abulafia to recover damages for intentional infliction of emotional distress ( see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545, 470 N.Y.S.2d 564, 458 N.E.2d 1241;Milewski v. Washington Mut., Inc., 88 A.D.3d 853, 855, 931 N.Y.S.2d 336). Since that issue was argued before the Supreme Court and has been briefed by the parties before us, we address it, and conclude that the cause of action to recover damages for intentional infliction of emotional distress should have been dismissed pursuant to CPLR 3211(a)(7) for failure to state a cause of action.
“In order to state a cause of action to recover damages for intentional infliction of emotional distress, the complaint must allege conduct that was ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency ... and [was] utterly intolerable in a civilized community’ ” ( Baumann v. Hanover Community Bank, 100 A.D.3d 814, 816–817, 957 N.Y.S.2d 111, quoting Marmelstein v. Kehillat New Hempstead: Rav Aron Jofen Community Synagogue, 11 N.Y.3d 15, 22–23, 862 N.Y.S.2d 311, 892 N.E.2d 375;see Howell v. New York Post Co., 81 N.Y.2d 115, 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). Even accepting as true the allegations in the complaint regarding Abulafia's conduct, and according the plaintiff the benefit of every possible favorable inference ( see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511;Baumann v. Hanover Community Bank, 100 A.D.3d at 815, 957 N.Y.S.2d 111), Abulafia's conduct was not “so outrageous in character, and so extreme in degree” as to qualify as intentional infliction of emotional distress ( see Murphy v. American Home Prods. Corp., 58 N.Y.2d at 303, 461 N.Y.S.2d 232, 448 N.E.2d 86;Klein v. Metropolitan Child Servs. Inc., 100 A.D.3d 708, 711, 954 N.Y.S.2d 559).
Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was to dismiss the cause of action alleging intentional infliction of emotional distress insofar as asserted against Abulafia, but should have denied that branch of the motion which was to dismiss the defamation cause of action insofar as asserted against Abulafia.
The parties' remaining contentions either need not be addressed in light of our determination or are without merit.