THOMAS P. ALIOTTA, J.
The following papers numbered 1 to 3 were marked fully submitted on the 10th day of August, 2011:
+-----------------------------------------------------------------------------+ ¦Papers ¦Numbered¦ +--------------------------------------------------------------------+--------¦ ¦Notice of Motion by defendant Mark Musarella, with Affirmation in ¦1 ¦ ¦Support and Attached Exhibits (dated June 16, 2011) ¦ ¦ +--------------------------------------------------------------------+--------¦ ¦Affirmation in Opposition by Plaintiffs, with Attached Exhibits ¦2 ¦ ¦(dated August 1, 2011) ¦ ¦ +--------------------------------------------------------------------+--------¦ ¦Reply Affirmation by defendant Mark Musarella (dated August 16, ¦3 ¦ ¦2011) ¦ ¦ +-----------------------------------------------------------------------------+
Upon the foregoing papers, the motion of defendant Mark Musarella to dismiss the fifth, sixth and seventh causes of action in the complaint sounding, respectively, in trespass, breach of fiduciary duty and infliction of emotional distress, is granted as to the sixth and seventh causes of action; the balance of the motion is denied.
As alleged in the complaint, plaintiff's deceased Caroline Wimmer (hereinafter “decedent”) was murdered in her apartment on March 28, 2009 by defendant Calvin Lawson (hereinafter “Lawson”). Her body was discovered two days later by her parents, plaintiffs Martha Wimmer and Ronald Wimmer (hereinafter “the Wimmers”). They went to check her apartment after not having heard from her for a few days and, finding the door ajar, they called 911. Defendant Mark Musarella (hereinafter “defendant”), an Emergency Medical Technician (or EMT), was among those who responded to the scene in ignorance of the fact that Ms. Wimmer was already deceased. While at the scene, defendant took a photograph of the decedent's corpse, which he subsequently uploaded onto his personal Facebook page.
Lawson was subsequently convicted, upon a jury verdict, of decedent's murder on May 26, 2010. On December 10, 2010, defendant Musarella pled guilty to a violation of Section 195.00 of the Penal Law (“Official Misconduct”), for his actions in taking the photo and posting it on Facebook. After he had successfully completed his sentence of community service, Musarella was allowed to withdraw his guilty plea and plead guilty to Penal Law Section 240.25 (“Disorderly Conduct”), a violation, on March 14, 2011.
Letters of Administration appointing Martha Wimmer as representative of her daughter's estate were granted on October 30, 2009. The summons and complaint in this action were filed on March 25, 2011. Defendant now moves to dismiss the fifth, sixth and seventh causes of action pleaded against him pursuant to CPLR 3211(a)(7).
As to the (fifth) cause of action for trespass, defendant argues that at the time he entered the decedent's premises, neither she nor either of her parents had any possessory rights in that apartment owing to the tenant's death and the parents' lack of any possessory interest. Hence, his lawful entry into the apartment for the purpose of rendering aid could not be retroactively rendered illegal by his taking of the unauthorized photograph. In response, plaintiffs contend that upon their daughter's death, the decedent's interest in the lease passed by operation of law to her personal representative as personal property. As a result, it is argued that since plaintiff Martha Wimmer was subsequently appointed as the administrator of her daughter's estate, she has the requisite standing to pursue an action for trespass. Alternatively, plaintiffs maintain that, even if the defendant had entered the apartment legally, his license to remain terminated once it became clear that there was no medical assistance to be rendered at the scene. Accordingly, by remaining in the apartment beyond that point, and taking an unauthorized photograph of the decedent, defendant turned his licensed entry into a trespass.
As to the (sixth) cause of action for breach of fiduciary duty, defendant argues that no such duty existed between himself and the decedent, who was already deceased when he entered the apartment. More specifically, defendant argues that two of the necessary elements of fiduciary duty, i.e., de facto control and dominance, were absent herein. In response, plaintiffs argue that defendant violated the guidelines promulgated by the New York State Department of Health which require EMTs to maintain patient confidentiality, and that these requirements applied to the decedent notwithstanding her prior demise since defendant had been summoned to the apartment for the purpose of rendering medical aid. According to plaintiffs, the fact that no such care was required does not relieve him of his duty to maintain confidentiality with reference to their daughter's condition.
Finally, as to the (seventh) cause of action for infliction of emotional distress, defendant argues that he owed no duty to either the decedent or her parents. A cause of action for the infliction of emotional distress upon another is usually premised upon actions that unreasonably endanger plaintiff's physical safety or cause such person to fear for his or her physical safety, elements which are totally absent here. Additionally, defendant argues that the complaint fails to make clear whether negligent or intentional infliction of emotional distress is claimed. If plaintiffs' claim is for the intentional infliction of emotional distress, defendant argues that it is either barred by the one year statute of limitations applicable thereto, and/or that his actions at bar do not rise to the level of extreme or outrageous conduct. Alternatively, if the plaintiffs are claiming the negligent infliction of emotional distress, defendant argues that the cause of action is fatally flawed absent any allegation that the physical safety of either of the Wimmers was ever in danger. In opposing dismissal, plaintiffs argue that the cause of action only requires them to allege extreme and outrageous conduct that intentionally or recklessly caused them to suffer severe emotional distress. In addition, plaintiffs maintain that under the Public Health Law they have an absolute right to control the disposition of the decedent's body, and that this right was violated by defendant's photographing the corpse and publishing the photograph, as a result of which both were caused to suffer extreme emotional distress.
“On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v. Olinville Realty, LLC, 54 AD3d 703, 703–704 [2d Dept 2008]; see, Leon v. Martinez, 84 N.Y.2d 83, 87–88 ;Corsello v. Verizon NY, Inc. 77 AD3d 344, 356 [2d Dept 2010] ).
In addition to the pleadings, the court may also consider evidentiary material submitted by plaintiff in order to remedy any defects in the complaint, at which point the salient issue for determination is ordinarily “whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one”. (Leon v. Martinez, 84 N.Y.2d, at 88) Trespass
A trespass is an intentional physical entry onto the property of another without justification or permission (Woodhull v. Town of Riverhead, 46 AD3d 802, 804 [2d Dept 2008], lv to app denied,10 NY3d 708 ;Corsello v. Verizon NY, Inc. 77 AD3d 344, 357 [2d Dept 2010] ). Hence, liability for civil trespass requires the trier of fact to consider whether the alleged tortfeasor, without justification or permission, either intentionally entered another's property, or, if entry was permitted, that he refused “to leave after permission to remain ha[d] been withdrawn” (Long Is Gynecological Servs, P.C. v. Murphy, 298 A.D.2d 504 [2d Dept 2002], citing Rager v. McCloskey, 305 N.Y. 75, 79 [internal quotation remarks omitted] ).
In Rager, the defendant lawfully entered the plaintiff's office in order to serve legal process, emphatically refused to leave upon finding that plaintiff was not there, and had to be removed by the police. It was there held that defendant's continued unauthorized presence constituted a sufficient predicate upon which to base a civil trespass claim. Just as a person can be found guilty of burglary in the second degree for remaining unlawfully in a dwelling even though the initial entry was lawful ( see People v. Brown, 111 A.D.2d 343 [2d Dept 1985] ), a person can be found liable for civil trespass by remaining on another's property without permission even though the initial entry was permitted or privileged (Rager v. McCloskey, 305 N.Y. at 79).
The issue of whether the presence upon private premises of a police officer or firefighter is “unlawful” has been held to be a jury question, notwithstanding that he or she may have entered the premises legally. A case in point is People v. Czerminski, (94 A.D.2d 957 [4th Dept.1983] ) where the governing principle was stated as follows:
Defendant's privilege as a police officer, like that of a fireman and unlike that of a person entering or remaining in or upon the premises open to the public who has a statutory privilege ... depends upon the purpose for which he enters or remains in or upon the property ... If the purpose is the performance of his public duty, the actions are privileged. If there is no such public purpose (as in the case of a policeman or a fireman remaining on property in order to commit a theft), there clearly can be no privilege. It was for the jury to determine whether at some point after his initial entry, which the People concede was privileged, defendant's purpose in remaining on or re-entering the premises was unrelated to the performance of his public duties and therefore unlawful. (94 A.D.2d at 957 [citations omitted] ).
Here, affording plaintiffs' claims, as we are enjoined, their most liberal construction, a cause of action for trespass has been validly stated inasmuch as the complaint alleges that while defendant entered the premises properly, he remained unlawfully not to render aid, but to photograph the corpse. At this early point in the litigation, where the parties have yet to conduct discovery, it is not known, among other things, how long defendant remained prior to taking the photograph; who else was present at the scene; whether he received any instructions from an authorized official regarding his continued presence, and whether he was asked to leave by plaintiffs or the landlord. Taking the language of the complaint at its face value, the requisite elements of a civil cause of action for trespass predicated on defendant's purported remaining on the premises unlawfully, have been sufficiently stated. As such, plaintiff's fifth cause of action should not be dismissed under CPLR 3211(a)(7). Breach of Fiduciary Duty
By law a fiduciary relationship “exists between two persons when one of them is under a duty to act for, or to give advice for, the benefit of another upon matters within the scope of the relation” (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19  ). Thus, the determination of whether a fiduciary relationship exists between parties necessarily involves a fact-specific inquiry, the essential elements of which are “reliance, ... de facto control and dominance” (Northeast Gen Corp. v. Wellington Adv Inc., 82 N.Y.2d 158, 173, [Hancock, Jr, J., dissenting][internal quotation marks omitted] ). Stated differently, “[a] fiduciary relation exists when confidence is reposed on one side and there is resulting superiority and influence on the other” ( AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 11 NY3d 146 [internal quotation marks omitted]. Nevertheless, the mere placing of one's trust or confidence in a party does not automatically create a fiduciary relationship; the trust or confidence must be both reposed and accepted, and whether a plaintiff can ultimately establish the existence of a fiduciary relationship on the specific facts adduced at trial is not part of the calculus in determining a motion to dismiss. ( see, EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d at 19–20)
The essential elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages arising directly therefrom. (Fitzpatrick House III, LLC v. Neighborhood Youth and Family Services, 55 AD3d 664 [2d Dept 2008] ); Kurtzman v. Bergstol, 40 AD3d 588 [2d Dept 2007];(Ozelkan v. Tyree Bros. Envtl. Servs. Inc., 29 AD3d 877, 879 [2d Dept 2006] ). However, a plaintiff must go beyond merely alleging that these essential elements are present if its claim is to survive a motion to dismiss pursuant to CPLR 3211(a)(7)(Gall v. Summit, Rovins and Feldesman, 222 A.D.2d 225, 226 [1st Dept 1995]; RBG Mgt. Corp. v. Compensation Risk Mgrs., LLC, 2009 N.Y. Slip Op 31923U, 14 [NY Sup.2009] ).
Here, the complaint fails to state a cause of action for breach of fiduciary duty since such a relationship of trust could not have been established between the decedent and defendant. The essence of a fiduciary relationship is the placement of trust from one party to another, who then assumes the duty to act with the highest degree of care. By the very nature of the circumstances underlying this case, such a relationship could not have been established with the decedent. As a result, plaintiffs' sixth cause of action for breach of fiduciary duty must be dismissed. Infliction of Emotional Distress
In their seventh cause of action, plaintiffs fail to specify whether the gravamen of their claim sounds in the intentional or negligent infliction of emotional distress. However, under either theory, this cause of action must be dismissed.
The tort of intentional infliction of emotional distress is governed by the one year statute of limitations set forth in CPLR 215 ( see Bridges v. Wagner, 80 AD3d 528 [1st Dept 2011] ). CPLR 215(8), however, allows a civil action to be brought within one year of the termination of any criminal action which was brought against the same defendant regarding the underlying event. Here, it is alleged in the complaint that defendant posted the offending photograph on Facebook at some point prior to his arrest on June 4, 2009, by which time it had already been removed. The moving defendant entered a plea of guilty on December 10, 2010, and was allowed to enter a lesser plea on March 14, 2011. The summons and complaint in this matter was filed on March 25, 2011. Even if the date of the earlier plea of guilty was utilized for the calculation, the one year period under CPLR 215(8) had not expired at the time that the summons and complaint was filed. Accordingly, the claim of intentional infliction of emotional distress would be timely.
The tort of intentional infliction of emotional distress has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. (Howell v. New York Post Co., 81 N.Y.2d 115, 121  )
Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Murphy v. American Home Products, 58 N.Y.2d 293, 303 . Courts are reluctant to allow recovery under the banner of intentional infliction of emotional distress absent a “deliberate and malicious campaign of harassment or intimidation” (Nader v. General Motors Corp., 25 N.Y.2d 560, 569 ;Owen v. Leventritt, 174 A.D.2d 471 [1st Dept.1991], lv. denied, 79 N.Y.2d 751 ;Cohn–Frankel v. United Synagogue of Conservative Judaism, 246 A.D.2d 332 [1st Dept 1998] ).
The defendant's conduct here, objectionable as it may have been, simply does not rise to the level required to constitute a valid claim for intentional infliction of emotional distress. Consequently, that cause of action is dismissed.
Alternatively, defendant claims that plaintiffs have failed to plead a valid cause of action for the negligent infliction of emotional distress owing to the lack of any claim of their having been cast in fear of their personal safety. However, as succinctly explained in Topor v. State of New York, 176 Misc.2d 177, 180 (Ct.Cl.1997):
The law has long been settled that a claimant can recover for emotional trauma even in the absence of a physical injury (Battalla v. State of New York, 10 N.Y.2d 237;Scannapieco v. New York City Tr. Auth., 200 A.D.2d 410, 412) ... [T]here is no requirement that a claimant seeking such recovery must be in physical fear of his or her own safety. That point is made clear by a review of pertinent Court of Appeals rulings. In the case of Martinez v. Long Is. Jewish Hillside Med. Ctr. (70 N.Y.2d 697), an abortion was performed on the plaintiff based on the erroneous advice of her physician that the baby would be born with a congenital birth defect. The plaintiff sued for emotional harm and the Court of Appeals held that “where there is a breach of a duty owed by defendant to plaintiff, the breach of that duty resulting directly in emotional harm is actionable” (supra, at 699). [Similarly, i]n the case of Johnson v. State of New York (37 N.Y.2d 378, 379–380), the Court of Appeals permitted the daughter of a hospital patient to recover for “emotional harm sustained by her as a result of negligent misinformation given by the hospital that her mother had died.” In neither of the foregoing cases was the plaintiff in fear of her own physical safety
Thus, contrary to defendant's position, the general rule in New York is that a plaintiff who has not suffered any physical injury may nevertheless recover damages for mental or emotional distress if he or she can establish that defendant owed him or her a duty, and that a breach of that duty directly resulted in serious and verifiable mental or emotional harm ( see, e.g., Bovsun v. Sanperi, 61 N.Y.2d 219 ;Kennedy v. McKesson Co., 58 N.Y.2d 500, 504 ;Dana v. Oak Park Marina, 230 A.D.2d 204, 207 [4th Dept 1997] ). Of greater relevance to the case at bar, it has been held that, even absent such proof, a decedent's relatives may recover for negligent infliction of emotional distress where (1) a defendant negligently transmitted erroneous information concerning the death of a loved one ( see Johnson v. State of New York, 37 N.Y.2d 378  ), (2) failed to “transmit truthful information concerning a relative's death or funeral (Lauer v. City of New York, 171 Misc.2d 832, 837,affd258 A.D.2d 92 [2d Dept.1999], revd on other grounds, 95 N.Y.2d 95  ), or (3) negligently mishandled a corpse (Augeri v. Roman Catholic Diocese, 225 A.D.2d 1105 [4th Dept.1996] ). It therefore appears that this limited exception to the rule barring the recovery of damages for the negligent infliction of emotional injury absent a showing of unreasonable risk or fear for physical safety is predicated on the belief that there exists in certain cases where, e.g. a defendant has breached a recognized duty such as the right of sepulcher flowing directly to the plaintiff, a special likelihood of genuine injury which serves as a guarantee that the claim is likely not to be spurious ( Shipley v. City of New York, 2009 N.Y. Slip Op 33249U, 2 ( [Sup Ct Richmond Co 2009][Aliotta, J.]; see Salandy v. Bryk, 55 AD3d 147 [2d Dept 2008]; Schultes v. Kane, 50 AD3d 1277 [3d Dept.2008] ).
Here, the gravamen of plaintiffs' seventh cause of action is limited to defendant's purported taking of an unauthorized photograph of the decedent and then posting it temporarily to his Facebook page. Without any allegation that defendant did anything physically to the corpse, or in any way withheld the body from disposition according to the wishes of her parents, or interfered with their right of sepulcher, their seventh cause of action fails to state a recognized claim for the negligent infliction of emotional distress. As such, it must also be dismissed.
Accordingly, it is
ORDERED that the motion by defendant Mark Musarella to dismiss as against him the fifth, sixth and seventh causes of action is granted as to the sixth and seventh causes of action only, and is otherwise denied; and it is further
ORDERED that the Clerk shall enter judgment and mark his records accordingly.