Summary
discussing "the tort of intentional infliction of emotional distress"
Summary of this case from Bradshaw v. City of N.Y.Opinion
2011-11-29
James J. REILLY, et al., appellants, v. GARDEN CITY UNION FREE SCHOOL DISTRICT, respondent.
Godosky & Gentile, P.C., New York, N.Y. (Robert E. Godosky, Brian J. Isaac, and Kenneth J. Gorman of counsel), for appellants. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for respondent.
Godosky & Gentile, P.C., New York, N.Y. (Robert E. Godosky, Brian J. Isaac, and Kenneth J. Gorman of counsel), for appellants. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In an action, inter alia, to recover damages for intentional infliction of emotional distress, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County (Feinman, J.), entered February 11, 2010, as, upon an order of the same court entered December 2, 2009, granting the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint, is in favor the defendant and against them dismissing so much of the complaint as alleged intentional infliction of emotional distress.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
Contrary to the plaintiffs' contention, the defendant timely moved to dismiss the complaint, inter alia, on the ground that the action was time-barred ( see CPLR 3211[e]; Matter of Abramov v. Board of Assessors, Town of Hurley, 257 A.D.2d 958, 960, 684 N.Y.S.2d 326; cf. Dougherty v. City of Rye, 63 N.Y.2d 989, 991–992, 483 N.Y.S.2d 999, 473 N.E.2d 249; Lipman v. Vebeliunas, 39 A.D.3d 488, 490, 833 N.Y.S.2d 210; Fade v. Pugliani/Fade, 8 A.D.3d 612, 614, 779 N.Y.S.2d 568).
The Supreme Court erred in determining that the notices of claim filed by the plaintiffs were untimely, and that the action was time-barred ( see General Municipal Law § 50–e[1][a]; § 50–i[1] ). The plaintiffs' cause of action to recover damages for intentional infliction of emotional distress accrued “when all of the elements of the tort” could “be truthfully alleged in a complaint” ( Snyder v. Town Insulation, 81 N.Y.2d 429, 432, 599 N.Y.S.2d 515, 615 N.E.2d 999; see Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 612 N.E.2d 289; Barrell v. Glen Oaks Vil. Owners, Inc., 29 A.D.3d 612, 613, 814 N.Y.S.2d 276). One of the elements of the tort of intentional infliction of emotional distress is that the plaintiffs must suffer severe emotional distress ( see Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699). In the case at bar, the plaintiffs could not have suffered severe emotional distress until the date of discovery of the written material which is the basis for their claim, on June 26, 2008. Thus, all of the elements of the tort of intentional infliction of emotional distress could not have been truthfully alleged in the complaint until that date. Accordingly, the notices of claim were timely filed and the action was not time-barred ( see Dixon v. City of New York, 76 A.D.3d 1043, 1044, 908 N.Y.S.2d 433; Schultes v. Kane, 50 A.D.3d 1277, 856 N.Y.S.2d 684; Long v. Sowande, 27 A.D.3d 247, 810 N.Y.S.2d 195).
Nevertheless, the Supreme Court correctly determined that the defendant was entitled to dismissal of so much of the complaint as alleged intentional infliction of emotional distress on the ground that the plaintiffs failed to state a cause of action. Even accepting the facts alleged in the complaint as true, according the plaintiffs the benefit of every possible inference, and according to the complaint a liberal construction ( see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Elisa Dreier Reporting Corp. v. Global NAPs Networks, Inc., 84 A.D.3d 122, 921 N.Y.S.2d 329; Holster v. Cohen, 80 A.D.3d 565, 566, 914 N.Y.S.2d 650; Poliah v. Westchester County Country Club, Inc., 14 A.D.3d 601, 787 N.Y.S.2d 902), the defendant's conduct, as alleged by the plaintiffs, did not constitute extreme and outrageous conduct ( see Howell v. New York Post Co., 81 N.Y.2d at 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; Stella v. County of Nassau, 71 A.D.3d 573, 574, 896 N.Y.S.2d 357; Seltzer v. Bayer, 272 A.D.2d 263, 264–265, 709 N.Y.S.2d 21; Shannon v. MTA Metro–N. R.R., 269 A.D.2d 218, 219, 704 N.Y.S.2d 208; Roach v. Stern, 252 A.D.2d 488, 675 N.Y.S.2d 133; LaDuke v. Lyons, 250 A.D.2d 969, 972–973, 673 N.Y.S.2d 240; Rubinstein v. New York Post Corp., 128 Misc.2d 1, 488 N.Y.S.2d 331; Restatement [Second] of Torts, § 46[1]; cf. Cavallaro v. Pozzi, 28 A.D.3d 1075, 1078, 814 N.Y.S.2d 462; 164 Mulberry St. Corp. v. Columbia Univ., 4 A.D.3d 49, 771 N.Y.S.2d 16; Esposito–Hilder v. SFX Broadcasting, 236 A.D.2d 186, 187–188, 665 N.Y.S.2d 697).
The parties' remaining contentions either need not be reached in light of our determination or are without merit.