Afifiv.City of N.Y.

Supreme Court, Appellate Division, Second Department, New York.Mar 13, 2013
961 N.Y.S.2d 269 (N.Y. App. Div. 2013)
961 N.Y.S.2d 269104 A.D.3d 7122013 N.Y. Slip Op. 1519

2013-03-13

Omar AFIFI, etc., et al., respondents, v. CITY OF NEW YORK, et al., appellants.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers, Kimberly Lennard, and Victoria Scalzo of counsel), for appellants. Joseph Giaramita, Jr., Brooklyn, N.Y., for respondents.



Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers, Kimberly Lennard, and Victoria Scalzo of counsel), for appellants.Joseph Giaramita, Jr., Brooklyn, N.Y., for respondents.
, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and SYLVIA HINDS–RADIX, JJ.



In an action, inter alia, to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), entered March 9, 2011, as denied those branches of their motion which were for summary judgment dismissing the first, third, fourth, and fifth causes of action.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the defendants' motion which were for summary judgment dismissing so much of the first, third, fourth, and fifth causes of action as alleged intentional and negligent infliction of emotional distress, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law dismissing the first, third, fourth, and fifth causes of action in their entirety on the ground that the alleged acts of the defendants' employees were outside the scope of their employment ( see Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278;White v. Alkoutayni, 18 A.D.3d 540, 541, 794 N.Y.S.2d 667;Beauchamp v. City of New York, 3 A.D.3d 465, 466–467, 771 N.Y.S.2d 129;Rausman v. Baugh, 248 A.D.2d 8, 10–11, 682 N.Y.S.2d 42;cf. N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 765 N.E.2d 844;Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 693 N.Y.S.2d 67, 715 N.E.2d 95;Dia CC. v. Ithaca City School Dist., 304 A.D.2d 955, 758 N.Y.S.2d 197;Mary KK. v. Jack LL., 203 A.D.2d 840, 841, 611 N.Y.S.2d 347;see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

However, the defendants were entitled to summary judgment dismissing so much of the first, third, fourth, and fifth causes of action as alleged intentional and negligent infliction of emotional distress. Public policy bars claims alleging intentional infliction of emotional distress against governmental entities ( see Eckardt v. City of White Plains, 87 A.D.3d 1049, 930 N.Y.S.2d 22;Ellison v. City of New Rochelle, 62 A.D.3d 830, 879 N.Y.S.2d 200;Chapdelaine v. Administration for Children's Servs., 48 A.D.3d 316, 317, 852 N.Y.S.2d 86;Pezhman v. City of New York, 47 A.D.3d 493, 494, 851 N.Y.S.2d 14;Wyllie v. District Attorney of County of Kings, 2 A.D.3d 714, 720, 770 N.Y.S.2d 110). Further, the allegations of negligent infliction of emotional distress were duplicative of the viable portions of the subject causes of action ( see Fischer v. Maloney, 43 N.Y.2d 553, 558, 402 N.Y.S.2d 991, 373 N.E.2d 1215;Leonard v. Reinhardt, 20 A.D.3d 510, 799 N.Y.S.2d 118;Brancaleone v. Mesagna, 290 A.D.2d 467, 468, 736 N.Y.S.2d 685;Ghaly v. Mardiros, 204 A.D.2d 272, 273, 611 N.Y.S.2d 582).

Accordingly, the Supreme Court should have granted those branches of the defendants' motion which were for summary judgment dismissing so much of the first, third, fourth, and fifth causes of action as alleged intentional and negligent infliction of emotional distress.