| Petkewicz v Dutchess County Dept. of Community &Family Servs. |
| 2016 NY Slip Op 01819 [137 AD3d 990] |
| March 16, 2016 |
| Appellate Division, Second Department |
[*1]
| Susan Petkewicz, Appellant, v DutchessCounty Department of Community & Family Services et al.,Respondents. |
Wolin & Wolin, Jericho, NY (Alan E. Wolin of counsel), for appellant.
McCabe & Mack LLP, Poughkeepsie, NY (Christina M. Piracci of counsel), forrespondents.
In an action to recover damages for intentional infliction of emotional distress, theplaintiff appeals from an order of the Supreme Court, Dutchess County (Sproat, J.), datedNovember 21, 2014, which granted the defendants' motion to dismiss the complaintpursuant to CPLR 3211 (a) (7) and denied her cross motion for recusal.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages for intentional infliction ofemotional distress arising out of the termination of her employment as a probationaryCPS Case Manager II with the defendant Dutchess County Department of Community& Family Services (hereinafter the Department). She alleged, inter alia, that thedefendant Diane Malone, her Department supervisor, was overtly hostile, failed toprovide her with meaningful mentoring and constructive feedback, and improperlyprejudged her ability to perform her work duties, leading to her discharge. She furtheralleged that the Department acquiesced in Malone's wrongful conduct, that thedefendants' conduct was extreme and outrageous, and that the defendants' conduct wasintended to and did cause her extreme emotional distress.
On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court should accept thealleged facts in the complaint as true and afford the proponent the benefit of everypossible favorable inference, and determine only whether the facts as alleged fit withinany cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Baron v Galasso, 83 AD3d626, 628 [2011]; Sokol vLeader, 74 AD3d 1180, 1181 [2010]).
"The elements of intentional infliction of emotional distress are (1) extreme andoutrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood ofcausing, severe emotional distress; (3) causation; and (4) severe emotional distress" (Klein v Metropolitan Child Servs.,Inc., 100 AD3d 708, 710 [2012]; see Marmelstein v Kehillat New Hempstead: The Rav Aron JofenCommunity Synagogue, 11 NY3d 15, 22-23 [2008]; Howell v New YorkPost Co., 81 NY2d 115, 121 [1993]; [*2]Taggart v Costabile, 131AD3d 243, 249-250 [2015]). Even accepting as true the allegations in the complaintregarding the defendants' conduct, and according the plaintiff the benefit of everypossible favorable inference, the defendants' conduct was not so extreme or outrageousas to satisfy the first element of intentional infliction of emotional distress (seeMurphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983]; Borawski v Abulafia, 117AD3d 662, 664-665 [2014]; Klein v Metropolitan Child Servs., Inc., 100AD3d at 710). Accordingly, the Supreme Court properly granted the defendants' motionto dismiss the complaint.
Contrary to the plaintiff's contentions, the Supreme Court providently exercised itsdiscretion in denying her cross motion for recusal. The plaintiff did not establish thatthere was a basis for recusal pursuant to Judiciary Law § 14 and failed to setforth any proof of bias or prejudice on the part of the Supreme Court Justice (seePeople v Moreno, 70 NY2d 403, 405-406 [1987]; Tornheim v Tornheim, 28AD3d 534, 535 [2006]; People ex rel. Smulczeski v Smulczeski, 18 AD3d 785, 786[2005]). Mastro, J.P., Dillon, Miller and Barros, JJ., concur.