| Borawski v Abulafia |
| 2014 NY Slip Op 03221 [117 AD3d 662] |
| May 7, 2014 |
| Appellate Division, Second Department |
[*1]
| Darota Borawski, M.D., Appellant, v OvadiaAbulafia, M.D., et al., Respondents. |
Dean T. Cho, New York, N.Y., for appellant.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu andMatthew W. Grieco of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract and wrongfultermination of employment, the plaintiff appeals from so much of an order of theSupreme Court, Queens County (Agate, J.), dated August 1, 2012, as granted thosebranches of the defendants' motion which were pursuant to CPLR 3211 (a) to dismiss thecauses of action alleging breach of contract, wrongful termination of employment,defamation, intentional infliction of emotional distress, discrimination in employment inviolation of Administrative Code of the City of New York § 8-107 (7), andpromissory estoppel insofar as asserted against the defendant Ovadia Abulafia.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the defendants' motion which was pursuant to CPLR 3211 (a) todismiss the cause of action alleging defamation insofar as asserted against the defendantOvadia Abulafia, and substituting therefor a provision denying that branch of the motion;as so modified, the order is affirmed insofar as appealed from, with costs to therespondents.
The plaintiff, who is an obstetrician and gynecologist formerly employed by thedefendant SUNY Downstate Medical Center (hereinafter SUNY Downstate),commenced this action, inter alia, to recover damages for breach of contract, wrongfultermination of employment, defamation, intentional infliction of emotional distress,discrimination in employment in violation of Administrative Code of the City of NewYork § 8-107 (7), and promissory estoppel. She alleged that SUNYDownstate and the defendant Ovadia Abulafia, who was the chairperson of SUNYDownstate's Department of Obstetrics and Gynecology (hereinafter the Department),breached the terms of her employment agreement and SUNY Downstate's writtenpolicies when they terminated her fellowship and constructively terminated heremployment in retaliation for her written complaint to Abulafia about excessive dutyhours. The plaintiff also alleged that the defendants breached certain promises made toinduce her to accept the fellowship position, and that her employment and fellowshipwere wrongfully terminated by the defendants in violation of their agreement to adhere topertinent statutes, rules, regulations, and policies concerning duty hours and retaliation.Further, the complaint alleged, among other things, that Abulafia made defamatorystatements to prospective employers regarding the plaintiff's professional conduct, andthat the "defendants' aforesaid wrongful conduct" was extreme and outrageous, causingthe plaintiff to suffer significant emotional distress.
[*2] The defendants moved pursuant to CPLR 3211 (a) todismiss the complaint on the grounds of lack of subject matter jurisdiction (seeCPLR 3211 [a] [2]) and failure to state a cause of action (see CPLR 3211 [a][7]). The Supreme Court, among other things, granted those branches of the motionwhich were to dismiss the causes of action to recover damages for breach of contract,wrongful termination of employment, promissory estoppel, defamation, and intentionalinfliction of emotional distress insofar as asserted against Abulafia, concluding that itlacked subject matter jurisdiction over those causes of action. The plaintiff appeals.
"The Court of Claims has limited jurisdiction to hear actions against the State itself,or actions naming State agencies or officials as defendants, where the action is, in reality,one against the State—i.e., where the State is the real party in interest" (Morellv Balasubramanian, 70 NY2d 297, 300 [1987]; see Starker v Trump Vil. Section 4, Inc., 104 AD3d 937,937-938 [2013]). Generally, "[t]he Court of Claims has exclusive jurisdiction overactions for money damages against State agencies, departments, and employees acting intheir official capacity in the exercise of governmental functions" (Dinerman v NYS Lottery, 58AD3d 669, 669 [2009]; see Court of Claims Act § 9 [2];Morell v Balasubramanian, 70 NY2d at 300; Matter of Peterson v New York City Dept. of Envtl. Protection,66 AD3d 1027, 1028-1029 [2009]). "Where, however, the suit against the Stateagent or officer is in tort for damages arising from the breach of a duty owed individuallyby such agent or officer directly to the injured party, the State is not the real party ininterest—even though it could be held secondarily liable for the tortious acts underrespondeat superior" (Morell v Balasubramanian, 70 NY2d at 301).
Contrary to the plaintiff's contention, the Supreme Court properly granted thosebranches of the defendants' motion which were to dismiss the causes of action to recoverdamages for breach of contract, wrongful termination of employment, and promissoryestoppel insofar as asserted against Abulafia, correctly concluding that it lacked subjectmatter jurisdiction to entertain those cases of action insofar as asserted against Abulafia,as those causes of action arose from acts performed, and determinations made, byAbulafia as a State employee acting in his official capacity (see Morell vBalasubramanian, 70 NY2d at 300-301; Cavanaugh v Doherty, 243 AD2d92, 98-99 [1998]). In connection with the causes of action alleging defamation andintentional infliction of emotional distress, however, the complaint sufficiently allegedthe breach of duties owed directly to the plaintiff by Abulafia in his personal capacity(see Morell v Balasubramanian, 70 NY2d at 301-302; Cavanaugh vDoherty, 243 AD2d at 101). Thus, the Supreme Court had subject matter jurisdictionto entertain those causes of action insofar as asserted against Abulafia.
In light of its holding that the cause of action alleging intentional infliction ofemotional distress was subject to dismissal for lack of subject matter jurisdiction, theSupreme Court did not address the argument, now urged by Abulafia as an alternativeground for affirmance, that the complaint fails to state a cause of action against Abulafiato recover damages for intentional infliction of emotional distress (see Parochial BusSys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983]; Milewski v Washington Mut.,Inc., 88 AD3d 853, 855 [2011]). Since that issue was argued before theSupreme Court and has been briefed by the parties before us, we address it, and concludethat the cause of action to recover damages for intentional infliction of emotional distressshould have been dismissed pursuant to CPLR 3211 (a) (7) for failure to state a cause ofaction.
"In order to state a cause of action to recover damages for intentional infliction ofemotional distress, the complaint must allege conduct that was 'so outrageous incharacter, and so extreme in degree, as to go beyond all possible bounds of decency. . . and [was] utterly intolerable in a civilized community' " (Baumann v Hanover CommunityBank, 100 AD3d 814, 816-817 [2012], quoting Marmelstein v Kehillat NewHempstead: The Rav Aron Jofen Community Synagogue, 11 NY3d 15, 22-23[2008]; see Howell v New York Post Co., 81 NY2d 115, 121 [1993]; Murphyv American Home Prods. Corp., 58 NY2d 293, 303 [1983]). Even accepting as truethe allegations in the complaint regarding Abulafia's conduct, and according the plaintiffthe benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d83, 87 [1994]; Baumann v Hanover Community Bank, 100 AD3d at 815),Abulafia's conduct was not "so outrageous in character, and so extreme in degree" as toqualify as intentional infliction of emotional distress (see Murphy v American HomeProds. Corp., 58 NY2d at 303; Klein v Metropolitan Child Servs., Inc., 100 AD3d 708,711 [2012]).
[*3] Accordingly, the SupremeCourt properly granted that branch of the defendants' motion which was to dismiss thecause of action alleging intentional infliction of emotional distress insofar as assertedagainst Abulafia, but should have denied that branch of the motion which was to dismissthe defamation cause of action insofar as asserted against Abulafia.
The parties' remaining contentions either need not be addressed in light of ourdetermination or are without merit. Mastro, J.P., Chambers, Lott and Duffy, JJ., concur.[Prior Case History: 36 Misc 3d 1222(A), 2012 NY Slip Op 51423(U).]