Summary
setting forth prima facie elements of an emotional-distress claim based on exposure to a toxic substance
Summary of this case from Pack v. ArtuzOpinion
September 14, 1998
Appeal from the Supreme Court, Suffolk County (Seidell, J.).
Ordered that the appeals by the defendant Coastal Oil New York, Inc., are dismissed for failure to perfect the same in accordance with the rules of this Court ( see, 22 NYCRR 670.8 [e]); and it is further,
Ordered that the appeal by the Vigliotta defendants from the order dated October 27, 1997, which denied the motion of the Sun defendants for partial summary judgment dismissing those causes of action asserted in the amended complaint on behalf of the plaintiffs Bruce W. Dyer, Allyson E. Dyer, Catherine Grella, and Margaret Palmaccio which were to recover damages for personal injuries, psychological injuries, and emotional distress, is dismissed, as they are not aggrieved thereby, not having joined in the motion; and it is further,
Ordered that the orders dated October 24, 1997, are reversed insofar as appealed from by the Vigliotta and the Sun defendants, the motions are granted, the causes of action asserted in the amended complaint on behalf of the plaintiffs Charles Prato, Margarita Prato, Ole Isaksen, Elizabeth Isaksen, Robert Zak, Lisa Huemmer, Darwin Haynes, Donna Haynes, William Baker, Gertrude B. Baker, John Roca, Michel Perrier, Laurie Perrier, Kenneth Charof, Hermel Nadeau, Guy Imbesi, Lynn Imbesi, Anthony Grella, Michael J. McLaughlin, Robert Seifert, Noel Seifert, Mariette Hines Gomez, Joseph DeLuca, and Albert Palmaccio to recover damages for personal injuries, psychological injuries, and emotional distress, and all causes of action asserted on behalf of the plaintiff Micheline Nadeau are dismissed insofar as asserted against those defendants and the action against the remaining defendants is severed; and it is further,
Ordered that the order dated October 27, 1997, which denied the motion of the Sun defendants for partial summary judgment dismissing those causes of action asserted in the amended complaint on behalf of the plaintiffs Bruce W. Dyer, Allyson E. Dyer, Catherine Grella, and Margaret Palmaccio to recover damages for personal injuries, psychological injuries, and emotional distress is reversed insofar as reviewed, the motion is granted, those causes of action are dismissed insofar as asserted against those defendants and the action against the remaining defendants is severed; and it is further,
Ordered that the order dated October 27, 1997, which denied the motion of the Sun defendants, in which the Vigliotta defendants joined, for partial summary judgment dismissing those causes of action asserted in the amended complaint on behalf of the plaintiffs Lisa Huemmer, Joyce Gorman, Guy Imbesi, Joseph DeLuca, and Albert Palmaccio to recover damages for personal injuries, psychological injuries, and emotional distress is reversed insofar as appealed from by those defendants, the motion is granted, those causes of action are dismissed insofar as asserted against those defendants and the action against the remaining defendants is severed; and it is further,
Ordered that one bill of costs is awarded to the appellants appearing separately and filing separate briefs.
To maintain a cause of action to recover damages for emotional distress following exposure to a toxic substance, a plaintiff must establish both that he was in fact exposed to a disease-causing agent and that there is a "rational basis" for his fear of contracting a disease ( see, Abusio v. Consolidated Edison Co., 238 A.D.2d 454; Wolff v. A-One Oil, 216 A.D.2d 291; Rittenhouse v. St. Regis Hotel Joint Venture, 149 Misc.2d 452, 454-455, mod on other grounds 180 A.D.2d 523; see also, Doner v. Adams Contr., 208 A.D.2d 1072; Jones v. Utilities Painting Corp., 198 A.D.2d 268). A "rational basis" has been construed to mean the clinically-demonstrable presence of a toxin in the plaintiff's body, or some other indication of a toxin-induced disease ( see, e.g., Abusio v. Consolidated Edison Co., supra; Wolff v. A-One Oil, supra; Conway v. Brooklyn Union Gas Co., 189 A.D.2d 851; Rittenhouse v. St. Regis Hotel Joint Venture, supra).
Here, although the respondents presented sufficient evidence to establish exposure to petroleum, they failed to present any clinical evidence of some physical manifestation of petroleum contamination. Because the respondents failed to raise an issue of fact as to whether there was a "rational basis" for their fear of developing a disease, they failed to set forth valid causes of action for emotional distress upon which relief could be granted.
Moreover, the respondents failed to establish any nexus between any personal injuries they sustained and petroleum contamination ( see, Iannotti v. City of Amsterdam, 225 A.D.2d 990).
Accordingly, summary judgment is granted to the extent indicated.
Miller, J. P., Copertino, Pizzuto and Santucci, JJ., concur.