| Davidovici v Fritzson |
| 2008 NY Slip Op 01909 [49 AD3d 488] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Helen Davidovici, Respondent, v Leonard Fritzson et al.,Defendants, and Mechanic Mortgage Group, Inc., et al., Appellants. |
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In an action, inter alia, to recover damages for negligent hiring and supervision, and negligentinfliction of emotional distress, the defendants Mechanic Mortgage Group, Inc., and DavidMechanic appeal from an order of the Supreme Court, Nassau County (Galasso, J.), enteredMarch 7, 2006, which denied their motion to dismiss the complaint insofar as asserted againstthem pursuant to CPLR 3211 (a) (7).
Ordered that the order is reversed, on the law, with costs, and the motion to dismiss thecomplaint insofar as asserted against the appellants is granted.
The defendant David Mechanic was a shareholder of the defendant Mechanic MortgageGroup, Inc., a mortgage brokerage firm which employed the defendant Leonard Fritzson as a loanoriginator. In 2005, Donald Domite, who was the sole shareholder of the plaintiff corporations,obtained certain loans through Mechanic's corporation, utilizing Fritzson. Domite then hiredFritzson, who was an accountant, to perform accounting services for his corporations. Inconnection with this employment, Domite gave Fritzson access to his corporations' bankaccounts. However, Fritzson, who had been convicted of tax fraud and bank fraud several yearsearlier, allegedly embezzled significant sums from those accounts.
Domite and his corporations then commenced the instant action against Fritzson, as well asMechanic and his corporation, to recover damages caused by Fritzson's alleged defalcations. Twocauses of action were asserted against Mechanic and his corporation. The first cause of actionwas, in essence, one to recover damages for negligent hiring and supervision. The other cause ofaction, [*2]which was only asserted on Domite's behalf, was torecover damages for negligent infliction of emotional distress.
The Supreme Court should have granted the motion of Mechanic and his corporation todismiss the complaint insofar as asserted against them pursuant to 3211 (a) (7). Even whenaccepting the facts alleged in the complaint as true, and according Domite and his corporationsthe benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87[1994]), the complaint fails to contain sufficient allegations from which it reasonably could befound that the allegedly negligent hiring and supervision of Fritzson was a proximate cause ofdamages to Domite and Domite's corporations (cf. Cardona v Cruz, 271 AD2d 221[2000]; Lemp v Lewis, 226 AD2d 907, 908 [1996]; Ford v Gildin, 200 AD2d224, 229 [1994]). In addition, a cause of action to recover damages for negligent infliction ofemotional distress generally must be premised upon conduct that unreasonably endangers aplaintiff's safety or causes the plaintiff to fear for his or her safety, and Domite failed to allegethat any such conduct occurred (seeSavva v Longo, 8 AD3d 551, 552 [2004]; Perry v Valley Cottage Animal Hosp.,261 AD2d 522, 522-523 [1999]; Glendora v Gallicano, 206 AD2d 456 [1994];De Rosa v Stanley B. Michelman, P.C., 184 AD2d 490, 491 [1992]). Finally, Domite andhis corporations failed to set forth any allegations which, if true (see Leon v Martinez, 84NY2d at 87), would justify piercing the corporate veil and holding Mechanic personally liable forhis corporation's alleged torts (see Waltzv Lynch, 26 AD3d 894 [2006]; Weis v Selected Meat Packers, 91 AD2d 1085,1086 [1983]). Ritter, J.P., Santucci, Covello and Carni, JJ., concur.