Allstate Ins. Co.v.Burger King Corp.

Appellate Division of the Supreme Court of New York, First DepartmentJan 24, 2006
808 N.Y.S.2d 74 (N.Y. App. Div. 2006)
808 N.Y.S.2d 7425 A.D.3d 4722006 N.Y. Slip Op. 383

7644, 7645.

January 24, 2006.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered November 20, 2003, which granted the cross motion by defendants A.J. Development and Lund Fire Products for summary judgment dismissing the cause of action for negligent infliction of emotional distress, and order, same court and Justice, entered February 4, 2005, which granted motions by the Burger King defendants dismissing the same cause of action, and by defendant 250-254 West 82nd Street Owners for summary judgment dismissing causes of action for breach of lease and negligent infliction of emotional distress, unanimously affirmed, without costs.

Peltz Walker, New York (Alexander Peltz of counsel), for appellants.

O'Connor, Redd, Gollihue Sklarin, LLP, White Plains (Laura Freeman of counsel), for Burger King respondents.

Law Office of Gould Associates, New York (David R. Frank of counsel), for A.J. Development Co., respondent.

Gennet, Kallmann, Antin Robinson, P.C., New York (William G. Hanft of counsel), for 250-254 West 82nd Street Owners, Inc., respondent.

Hodgson Russ, Buffalo (Lawrence R. Bailey, Jr. of counsel), for Lund Fire Products, Inc., respondent.

Before: Buckley, P.J., Tom, Sullivan, Nardelli and McGuire, JJ., concur.

The Kranis plaintiffs had no viable cause of action for negligent infliction of emotional distress arising out of the negligent destruction of their property where there is no claim that plaintiffs themselves were in any physical danger ( see Curbean v. Kibel, 12 AD3d 206; Golden v. Manhasset Condominium, 2 AD3d 345, 346; Probst v. Cacoulidis, 295 AD2d 331, 332). The claimed exacerbation of plaintiffs' preexisting medical conditions, caused by displacement from their home for nine months, is a consequential — not a direct — result of any negligence, and is therefore not compensable ( see Kennedy v. McKesson Co., 58 NY2d 500, 506; Probst, 295 AD2d at 332).