| Santana v Leith |
| 2014 NY Slip Op 03251 [117 AD3d 711] |
| May 7, 2014 |
| Appellate Division, Second Department |
[*1]
| Travis Santana, Appellant, v William Leith,Respondent. |
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.
Karasyk & Moschella, LLP, New York, N.Y. (James M. Moschella of counsel),for respondent.
In an action to recover damages for negligent infliction of emotional distress, theplaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court,Richmond County (Fusco, J.), dated June 18, 2013, as granted that branch of thedefendant's motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7)for failure to state a cause of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
On September 22, 2009, the defendant allegedly attacked the plaintiff with ahammer, while using racial and ethnic slurs. Nearly three years later, after the statute oflimitations to recover damages on an intentional tort theory had expired, the plaintiffcommenced this action to recover damages for negligent infliction of emotional distress.The defendant moved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss the complaintfor failure to state a cause of action, and the Supreme Court granted that branch of hismotion.
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure tostate a cause of action, the court must afford the pleading a liberal construction, accept allfacts as alleged in the pleading to be true, accord the plaintiff the benefit of everypossible inference, and determine only whether the facts as alleged fit within anycognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704[2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]; Sacher v Beacon Assoc. Mgt.Corp., 114 AD3d 655 [2014]; Young v Brown, 113 AD3d 761 [2014]). Under thisstandard, the complaint fails to state a cause of action to recover damages for negligentinfliction of emotional distress.
A cause of action to recover damages for negligent infliction of emotional distress,which no longer requires physical injury as a necessary element, "generally must bepremised upon the breach of a duty owed to [the] plaintiff which either unreasonablyendangers the plaintiff's physical safety, or causes the plaintiff to fear for his or her ownsafety" (Sheila C. v Povich,11 AD3d 120, 130 [2004]; see Jason v Krey, 60 AD3d 735, 736 [2009]; Davidovici v Fritzson, 49AD3d 488, 490 [2008]; Gaylord v Fiorilla, 28 AD3d 713, 713-714 [2006]; Lipton v UnumprovidentCorp., 10 AD3d 703, 706 [2004]; Savva v [*2]Longo, 8 AD3d551, 552 [2004]; E.B. vLiberation Publs., 7 AD3d 566, 567 [2004]). "Such a claim must fail where, ashere, '[n]o allegations of negligence appear in the pleadings' " (Daluise v Sottile, 40 AD3d801, 803 [2007], quoting Russo v Iacono, 73 AD2d 913, 913 [1980]). Herethe plaintiff's allegations in the verified complaint that the defendant "deliberately andviolently" attacked him with a hammer, while using racial and ethnic slurs, are premisedon intentional conduct and not negligence. Accordingly, the Supreme Court properlygranted that branch of the defendant's motion which was to dismiss the complaintpursuant to CPLR 3211 (a) (7) for failure to state a cause of action. Rivera, J.P.,Leventhal, Hinds-Radix and Maltese, JJ., concur.