New York’s Appellate Division, First Department recently issued an opinion holding that “extreme and outrageous conduct is no longer an essential element of a cause of action to recover damages for negligent infliction of emotional distress.” See Mabel Johanna Brown et al., Plaintiffs-Respondents-Appellants v. New York Design Center, Inc., Defendant-Appellant-Respondent, Newark Knight Frank Global Management Services, LLC et al., New York State Law Reporting Bureau, (App. Div. March 9, 2023). This decision now follows the recent decisions of the Second, Third and Fourth Departments.
This case arises out of an incident that occurred to Plaintiffs employed in a building owned by the Defendant, New York Design Center (NYDC). In April 2014, an electrician using the men’s restroom noticed a recording camera pointed through the wall and into a stall of the women’s restroom. Graphic videos of women using the bathroom were discovered on the device. Plaintiffs initiated a lawsuit arguing claims of negligence, intentional infliction of emotional distress, negligent infliction of emotional distress and negligent hiring. Several of them testified that they had previously seen the hole prior to the camera’s discovery. A few of them testified that they had complained about the state of the bathroom, including the hole behind the toilet.
The Defendant moved for summary judgment to dismiss the complaint, arguing that the Plaintiffs did not show that the Defendant was on notice of the camera, and they did not suffer any legally compensable injuries. Defendant also argued that its conduct was not outrageous, and Plaintiffs did not fear for their safety. The Plaintiffs opposed, arguing that NYDC had actual and constructive notice of the hole, and that they testified to “paranoia and/or hypervigilance, many engaging in behavior such as habitually checking vents or looking for other spaces where cameras could be hidden, especially in public restrooms, dressing rooms and hotel rooms.”
On March 22, 2022, the Supreme Court in New York County granted Defendant NYDC’s motion for summary judgment dismissing the negligent infliction of emotional distress claim and denied the motion as to the negligence claim.
On Appeal, the Court revisited prior decisions regarding the showing necessary to sustain a cause of action for negligent infliction of emotional distress. The Court held that contrary to the Defendant’s argument, the Plaintiffs sustained emotional injuries which are a direct result of the breach of duty owed. The direct result of injury here was that the Plaintiffs were humiliated, embarrassed, felt violated, and paranoid which the Court saw as “reasonable fears given that it is not know whether additional videos exist and may be posted on the internet.” The Court reviewed Sheila v. Povich, (11 AD3d 120, 130-131 [1st Dept 2004]) and found that it and other authorities “all rely either directly or indirectly on cases that deal exclusively with intentional infliction of emotional distress or where there are allegations of both.” The Court now holds that “extreme and outrageous conduct is not an essential element of a cause of action to recover damages for negligent infliction of emotional distress.” Moreover, the Court holds that a breach of duty of care resulting directly in emotional harm is compensable when there is a direct emotional injury as a result of the breach, even when there is no physical injury.