Opinion
July 18, 1994
Appeal from the Supreme Court, Westchester County (Ruskin, J.).
Ordered that the order is affirmed, with costs.
Contrary to the plaintiff's contention, service by mail is complete upon the date the papers are deposited in the mail, not the date of receipt by the party to be served (see, CPLR 2103 [b]; Jenny Oil Corp. v. Petro Prods. Distribs., 121 A.D.2d 687). Accordingly, the defendants timely served their motion to dismiss by mail delivery postmarked on May 4, 1993, which was within the 20-day period set forth in CPLR 320 for either answering the complaint or bringing a motion to dismiss.
We find that the complaint fails to state a cause of action to recover damages for negligent infliction of emotional distress. While physical injury is no longer a necessary element, a cause of action to recover damages for negligent infliction of emotional distress must generally be premised upon conduct which "unreasonably endangers" the plaintiff's physical safety (see, De Rosa v. Stanley B. Michelman, P.C., 184 A.D.2d 490, 491). No such conduct is alleged here, and the plaintiff's claim does not come within any recognized exception to the foregoing rule (see, Johnson v. State of New York, 37 N.Y.2d 378).
We further find that the plaintiff was collaterally estopped and/or barred by res judicata from relitigating the remaining issues in this case (see, Boronow v. Boronow, 71 N.Y.2d 284, 290; Kaufman v. Lilly Co., 65 N.Y.2d 449, 455; Matter of Manshul Constr. Corp. v. New York City School Constr. Auth., 192 A.D.2d 659). Rosenblatt, J.P., Miller, Ritter and Santucci, JJ., concur.