Intentional Torts Interference

Outrageous Conduct Causing Emotional Distress

PJI 3:6 Intentional Torts—Interference with Person or Property—Outrageous Conduct Causing Emotional Distress

One who (intentionally and for the purpose of causing severe emotional distress, recklessly) conducts (himself, herself) toward another person in a manner so shocking and outrageous that it exceeds all reasonable bounds of decency is liable to such person for any resulting severe emotional distress.

([To charge “intent”, use the first four sentences; to charge “recklessness”, use the fifth sentence; to charge both, use the entire paragraph.]

Intent involves the state of mind with which an act is done. If a person acts voluntarily with a desire to bring about a result, (he, she) is said to have intended that result.

Further, although (he, she) has no desire to bring about the result, if (he, she) does the act knowing, with substantial certainty, that the result will follow, (he, she) is also said to have intended that result.

An act is reckless when it is done in such a manner and under such circumstances as to show utter disregard of the consequences that may follow.

Emotional distress is severe when it is of such intensity and duration that no reasonable person should be expected to endure it.

If you find, first, that defendant’s conduct toward plaintiff was so outrageous and shocking that it exceeded all reasonable bounds of decency as measured by what the average member of the community would tolerate and, second, that defendant’s conduct caused severe emotional distress to plaintiff and, third, that defendant acted ([select as appropriate] with the desire to cause such distress to plaintiff; under circumstances known to defendant which made it substantially certain that that result would follow; recklessly and with utter disregard of the consequences that might follow) your finding on this issue will be for plaintiff.

If, on the other hand, you find, first, that defendant’s conduct was not so outrageous and shocking as to exceed all reasonable bounds of decency as measured by what the average member of the community would tolerate or, second, that although it was, defendant’s conduct did not cause severe emotional distress to plaintiff or, third, that although defendant’s conduct was outrageous and shocking and did cause severe emotional distress to plaintiff, defendant did not act ([select as appropriate] with the desire to cause such distress to plaintiff; nor under circumstances known to defendant which made it substantially certain that that result would follow; recklessly and with utter disregard of the consequences that might follow) your finding on this issue will be for the defendant.

Based on

  1. Chanko v American Broadcasting Companies Inc., 27 NY3d 46, 29 NYS3d 879, 49 NE3d 1171 (2016);
  1. Fischer v Maloney, 43 NY2d 553, 402 NYS2d 991, 373 NE2d 1215 (1978);
  1. Clark v New York Telephone Co., 52 AD2d 1030, 384 NYS2d 562 (4th Dept 1976), aff’d, 41 NY2d 1069, 396 NYS2d 177, 364 NE2d 841 (1977) (citing PJI);
  1. Nestlerode v Federal Ins. Co., 66 AD2d 504, 414 NYS2d 398 (4th Dept 1979) (citing PJI);
  1. Murphy v Murphy, 109 AD2d 965, 486 NYS2d 457 (3d Dept 1985);
  1. Long v Beneficial Finance Co. of New York, 39 AD2d 11, 330 NYS2d 664 (4th Dept 1972); Halio v Lurie, 15 AD2d 62, 222 NYS2d 759 (2d Dept 1961);
  1. Mitran v Williamson, 21 Misc2d 106, 197 NYS2d 689 (Sup 1960); see Murphy v American Home Products Corp., 58 NY2d 293, 461 NYS2d 232, 448 NE2d 86 (1983);
  1. Nader v General Motors Corp., 25 NY2d 560, 307 NYS2d 647, 255 NE2d 765 (1970);
  1. Roach v Stern, 252 AD2d 488, 675 NYS2d 133 (2d Dept 1998);
  • Prosser & Keeton, Torts (5th ed) 54, § 12; 1

Background

 

The tort of intentional infliction of severe emotional distress is a relatively recent development in New York. Until it was overruled in 1961, Mitchell v Rochester Ry. Co., 151 NY 107, 45 NE 354 (1896) (ovrld, Battalla v State, 10 NY2d 237, 219 NYS2d 34, 176 NE2d 729 (1961)), barred the recovery for injuries caused by emotional disturbance in negligence actions in the absence of physical injury or impact.

On the other hand, recovery for mental or emotional disturbance was permitted in cases involving the traditional willful torts such as assault, Williams v Underhill, 63 App Div 223, 71 NYS 291 (1st Dept 1901); trespass, Preiser v Wielandt, 48 App Div 569, 62 NYS 890 (2d Dept 1900); false imprisonment, Tierney v State, 266 App Div 434, 42 NYS2d 877 (3d Dept 1943), aff’d, 292 NY 523, 54 NE2d 207 (1944); and defamation, Garrison v Sun Printing & Publishing Ass’n, 207 NY 1, 100 NE 430 (1912).

Ferrara v Galluchio, 5 NY2d 16, 176 NYS2d 996, 152 NE2d 249 (1958), authorized a recovery for purely mental suffering in a medical malpractice action, and Battalla v State, 10 NY2d 237, 219 NYS2d 34, 176 NE2d 729 (1961), expressly overruled Mitchell v Rochester R. Co. Since then, either mental or physical injury may be considered in assessing damages in any tort action, see PJI 2:284, though the subject is not free from controversy, see Bovsun v Sanperi, 61 NY2d 219, 473 NYS2d 357, 461 NE2d 843 (1984); Kennedy v McKesson Co., 58 NY2d 500, 462 NYS2d 421, 448 NE2d 1332 (1983).

Elimination of the distinction between unintentional and intentional torts encouraged the courts to take the next step and eliminate the requirement that the mental injury be caused by the commission of a traditional tort.

In Mitran v Williamson, 21 Misc2d 106, 197 NYS2d 689 (Sup 1960), recovery was first permitted for mental disturbance arising solely from outrageous conduct involving no physical contact.

Eighteen years later Fischer v Maloney, 43 NY2d 553, 402 NYS2d 991, 373 NE2d 1215 (1978), acknowledged the existence of the cause of action of intentional infliction of emotional distress.

New York has adopted the rule set forth in Restatement, Torts, Second, § 46(1) that: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress,” Freihofer v Hearst Corp., 65 NY2d 135, 490 NYS2d 735, 480 NE2d 349 (1985); Fischer v Maloney, supra.

A cause of action for intentional infliction of emotional distress may not be maintained where the conduct complained of falls well within the ambit of other traditional tort liability, Fischer v Maloney, 43 NY2d 553, 402 NYS2d 991, 373 NE2d 1215 (1978); Conde v Yeshiva University, 16 AD3d 185, 792 NYS2d 387 (1st Dept 2005) (remedy for damages available in statutory claims for sexual harassment and retaliation); Di Orio v Utica City School Dist. Bd. of Educ., 305 AD2d 1114, 758 NYS2d 743 (4th Dept 2003); Demas v Levitsky, 291 AD2d 653, 738 NYS2d 402 (3d Dept 2002); McIntyre v Manhattan Ford, Lincoln-Mercury, Inc., 256 AD2d 269, 682 NYS2d 167 (1st Dept 1998); Butler v Delaware Otsego Corp., 203 AD2d 783, 610 NYS2d 664 (3d Dept 1994); Sweeney v Prisoners’ Legal Services of New York, Inc., 146 AD2d 1, 538 NYS2d 370 (3d Dept 1989).

Conduct that is not actionable as defamation because the statement constitutes nonactionable opinion may nevertheless be the subject of an action for intentional infliction of emotional distress so long as the plaintiff is not a public figure and the conduct does not implicate a matter of public concern, and where the status of the parties supports an intent to injure, Esposito-Hilder v SFX Broadcasting Inc., 236 AD2d 186, 665 NYS2d 697 (3d Dept 1997). Moreover, a public figure may not recover for intentional infliction of emotional distress without showing that the publication at issue contains a false statement of fact that was made with constitutional malice, Hustler Magazine, Inc. v Falwell, 485 US 46, 108 SCt 876 (1988).

Elements

The tort of intentional infliction of emotional distress requires the following four elements:

  • extreme and outrageous conduct;
  • intent to cause or disregard of a substantial probability of causing severe emotional distress;
  • a causal connection between the conduct and injury;
  • and severe emotional distress,

Chanko v American Broadcasting Companies Inc., 27 NY3d 46, 29 NYS3d 879, 49 NE3d 1171 (2016); Howell v New York Post Co., Inc., 81 NY2d 115, 596 NYS2d 350, 612 NE2d 699 (1993).

There is a body of caselaw that appears to stand for the principle that damages for emotional distress caused by the negligent or intentional destruction of personal property may not be recovered, see Biondo v Linden Hill United Methodist Cemetery Corp., 280 AD2d 570, 720 NYS2d 558 (2d Dept 2001) (moving monument from head to foot of grave); Stanley v Smith, 183 AD2d 675, 584 NYS2d 60 (1st Dept 1992) (towing car); Fowler v Ticonderoga, 131 AD2d 919, 516 NYS2d 368 (3d Dept 1987) (killing dog).

However, emotional distress is compensable when it is the direct, rather than consequential, result of the breach of a duty owed, see Probst v Cacoulidis, 295 AD2d 331, 743 NYS2d 509 (2d Dept 2002). Thus, the cases are properly understood as standing for the principle that the requisite elements of intentional infliction of emotional distress have not been satisfied.

Outrageous Conduct

Liability arises only when defendant’s conduct is extreme and outrageous, measured by the reasonable bounds of decency tolerated by decent society,

Chanko v American Broadcasting Companies Inc., 27 NY3d 46, 29 NYS3d 879, 49 NE3d 1171 (2016); Marmelstein v Kehillat New Hempstead, 11 NY3d 15, 862 NYS2d 311, 892 NE2d 375 (2008); Freihofer v Hearst Corp., 65 NY2d 135, 490 NYS2d 735, 480 NE2d 349 (1985); Burlew v American Mut. Ins. Co., 63 NY2d 412, 482 NYS2d 720, 472 NE2d 682 (1984); Murphy v American Home Products Corp., 58 NY2d 293, 461 NYS2d 232, 448 NE2d 86 (1983); Fischer v Maloney, 43 NY2d 553, 402 NYS2d 991, 373 NE2d 1215 (1978); Wiener v Wiener, 84 AD2d 814, 444 NYS2d 130 (2d Dept 1981); Nestlerode v Federal Ins. Co., 66 AD2d 504, 414 NYS2d 398 (4th Dept 1979); Halio v Lurie, 15 AD2d 62, 222 NYS2d 759 (2d Dept 1961); Restatement, Torts 2d, § 46,

Comment d. More must be involved than hurt feelings; mere insults, indignities, threats, annoyances or other trivialities are not enough,

Associates First Capital v Crabill, 51 AD3d 1186, 857 NYS2d 799 (3d Dept 2008); 164 Mulberry Street Corp. v Columbia University, 4 AD3d 49, 771 NYS2d 16 (1st Dept 2004); Bell v Slepakoff, 224 AD2d 567, 639 NYS2d 406 (2d Dept 1996); Owen v Leventritt, 174 AD2d 471, 571 NYS2d 25 (1st Dept 1991); Lincoln First Bank of Rochester v Barstro & Associates Contracting, Inc., 49 AD2d 1025, 374 NYS2d 485 (4th Dept 1975); Flamm v Van Nierop, 56 Misc2d 1059, 291 NYS2d 189 (Sup 1968); Annot: 20 ALR4th 773; see James v Saltsman, 99 AD2d 797, 472 NYS2d 129 (2d Dept 1984).

Publication of a single, purportedly false or defamatory article regarding a person does not constitute extreme and outrageous conduct as a matter of law, Bement v N.Y.P. Holdings, Inc., 307 AD2d 86, 760 NYS2d 133 (1st Dept 2003).

But a deliberate and malicious campaign of harassment or intimidation gives rise to a cause of action, Nader v General Motors Corp., 25 NY2d 560, 307 NYS2d 647, 255 NE2d 765 (1970); Eves v Ray, 42 AD3d 481, 840 NYS2d 105 (2d Dept 2007); Mitchell v Giambruno, 35 AD3d 1040, 826 NYS2d 788 (3d Dept 2006); Cavallaro v Pozzi, 28 AD3d 1075, 814 NYS2d 462 (4th Dept 2006); 164 Mulberry Street Corp. v Columbia University, supra; Vasarhelyi v New School for Social Research, 230 AD2d 658, 646 NYS2d 795 (1st Dept 1996); Stram v Farrell, 223 AD2d 260, 646 NYS2d 193 (3d Dept 1996).

The extreme and outrageous nature of the conduct may arise from abuse by the defendant of some relation or position that gives the defendant actual or apparent power to damage the plaintiff’s interests, Vasarhelyi v New School for Social Research, 230 AD2d 658, 646 NYS2d 795 (1st Dept 1996); Prosser & Keeton, Torts § 12 (5th ed); see 164 Mulberry Street Corp. v Columbia University, 4 AD3d 49, 771 NYS2d 16 (1st Dept 2004).

However, this factor, which is present whenever an employer terminates an employee, does not on its own permit the rephrasing of a basic wrongful discharge claim into an actionable claim for emotional distress, Cavanaugh v Doherty, 243 AD2d 92, 675 NYS2d 143 (3d Dept 1998); see Murphy v American Home Products Corp., 58 NY2d 293, 461 NYS2d 232, 448 NE2d 86 (1983); Leibowitz v Bank Leumi Trust Co. of New York, 152 AD2d 169, 548 NYS2d 513 (2d Dept 1989); see also Priore v New York Yankees, 307 AD2d 67, 761 NYS2d 608 (1st Dept 2003).

If the defendant is aware that plaintiff is peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity, defendant’s conduct is to be evaluated in light of that knowledge and may be held outrageous under those circumstances even though, absent such knowledge, it would not be so considered, Restatement, Torts 2d, § 46, Comment f; see Preiser v Wielandt, 48 App Div 569, 62 NYS 890 (2d Dept 1900); Scheman v Schlein, 35 Misc2d 581, 231 NYS2d 548 (Sup 1962).

However, rape victims who were interviewed for television program and despite assurances of anonymity were readily recognizable did not state cause of action for intentional infliction of mental distress despite defendant’s knowledge of plaintiffs’ vulnerability, Doe v American Broadcasting Companies, Inc., 152 AD2d 482, 543 NYS2d 455 (1st Dept 1989).

Likewise, the required level of extreme and outrageous conduct was not present where defendants, a hospital and an emergency-room physician, violated patient-physician confidentiality and permitted a television station to air footage of decedent’s treatment just before he died as well as footage of family members being informed of his death; the decedent was not identified by name, his image was blurred and the footage comprised no more than three minutes of the program episode, Chanko v American Broadcasting Companies Inc., 27 NY3d 46, 29 NYS3d 879, 49 NE3d 1171 (2016).

Provocation on plaintiff’s part, see 1 Harper & James, The Law of Torts 671, § 9.3, or a long continued course of practical joking between plaintiff and defendant, see Prosser & Keeton, Torts (5th ed) 114, § 18, may be circumstances to be considered in evaluating defendant’s conduct.

Whether the conduct complained of is outrageous is, in the first instance, for the court, Cavallaro v Pozzi, 28 AD3d 1075, 814 NYS2d 462 (4th Dept 2006); Rocco v Smithtown, 229 AD2d 1034, 645 NYS2d 187 (4th Dept 1996); Burba v Rochester Gas and Elec. Corp., 90 AD2d 984, 456 NYS2d 578 (4th Dept 1982); see Chanko v American Broadcasting Companies Inc., 27 NY3d 46, 29 NYS3d 879, 49 NE3d 1171 (2016), but where reasonable persons may differ concerning its nature, it is a question for the jury, 164 Mulberry Street Corp. v Columbia University, 4 AD3d 49, 771 NYS2d 16 (1st Dept 2004) (whether defendant professor’s conduct in connection with research project, which involved making false accusations of food poisoning at several restaurants, is sufficiently outrageous is question for jury); Richard L. v Armon, 144 AD2d 1, 536 NYS2d 1014 (2d Dept 1989) (whether defendant’s sexual abuse of a minor is sufficiently outrageous is a question for the jury, not the court); Restatement, Torts 2d, § 46, Comment h.

 

WHAT IS NOT OUTRAGEOUS

The element of outrageous conduct has been characterized as rigorous and difficult to satisfy, designed to filter out trivial complaints and assure that the claim of severe emotional distress is genuine, Chanko v American Broadcasting Companies Inc., 27 NY3d 46, 29 NYS3d 879, 49 NE3d 1171 (2016); Howell v New York Post Co., Inc., 81 NY2d 115, 596 NYS2d 350, 612 NE2d 699 (1993); Roach v Stern, 252 AD2d 488, 675 NYS2d 133 (2d Dept 1998); see Seltzer v Bayer, 272 AD2d 263, 709 NYS2d 21 (1st Dept 2000), detailing the difficulty of establishing the requisite outrageousness.

This proposition is demonstrated by the following cases:

The refusal of a spouse to cooperate in obtaining a religious divorce in order to induce a favorable settlement from the other spouse does not rise to the level of actionable conduct, Perl v Perl, 126 AD2d 91, 512 NYS2d 372 (1st Dept 1987).

Outrageousness was not established by the plaintiffs’ allegations that the defendants illegally evicted them from the premises, ransacked their possessions, prevented the plaintiffs from removing their property, and videotaped the proceedings, Stella v Nassau, 71 AD3d 573, 896 NYS2d 357 (1st Dept 2010).

Outrageousness was not established where the defendant doctor employed vulgar language in stating the treatment prescribed for the plaintiff on the hospital discharge form, Suarez v Bakalchuk, 66 AD3d 419, 887 NYS2d 6 (1st Dept 2009).

Outrageousness was not established where the plaintiffs alleged that the defendant, their employer, made false representations to induce them to accept employment, placed unreasonable demands upon them while they worked for the defendant, and made defamatory statements about them, Epifani v Johnson, 65 AD3d 224, 882 NYS2d 234 (2d Dept 2009)

Outrageousness was not established by the plaintiffs’ allegations that the defendants made rude remarks to and about her, commenced two baseless lawsuits and filed a criminal complaint against her, and frightened the plaintiff and her daughter by attempting to instigate her arrest, Kaye v Trump, 58 AD3d 579, 873 NYS2d 5 (1st Dept 2009).

Outrageousness was not established by the collection efforts taken by a company in connection with a dispute over indebtedness, even though those efforts included foreclosure threats, embarrassing and upsetting telephone calls to the workplace of one of the parties claiming intentional infliction of emotional distress, and resulted in stress from the ongoing dispute, Associates First Capital v Crabill, 51 AD3d 1186, 857 NYS2d 799 (3d Dept 2008).

Outrageousness was not established where the conduct by the defendants allegedly consisted of faxes and phone calls, including communications made to the plaintiff’s parents; threatening the plaintiff with arrest and criminal prosecution; and instigating the plaintiff’s arrest by means of false statements to the police concerning plaintiff’s indebtedness to the defendants, Slatkin v Lancer Litho Packaging Corp., 33 AD3d 421, 822 NYS2d 507 (1st Dept 2006)

Outrageousness was not established where the defendant, plaintiff’s supervisor, was alleged to have maliciously displayed to coworkers nude photos taken of plaintiff in connection with his work as a model, Anderson v Abodeen, 29 AD3d 431, 816 NYS2d 415 (1st Dept 2006). The extreme and outrageous conduct requirement was not satisfied where defendant accused the plaintiff of sexually assaulting his granddaughter, Lewittes v Blume, 18 AD3d 261, 795 NYS2d 13 (1st Dept 2005).

Outrageousness was not established where the defendant/doctor obtained hospital documents showing that plaintiff underwent a vasectomy and then used the documents in a matrimonial action to support defendant’s contention that defendant’s wife was having an affair with the plaintiff, Andrews v Bruk, 220 AD2d 376, 631 NYS2d 771 (2d Dept 1995).

Allegations that a landlord delayed offering a renewal lease, refused to repair a ceiling, refused to return keys, and breached the covenant of quiet enjoyment do not come “even close to approaching the threshold of outrageousness,” Graupner v Roth, 293 AD2d 408, 742 NYS2d 208 (1st Dept 2002).

Giving false information to the police is not so outrageous as to be actionable, Brown v Sears Roebuck and Co., 297 AD2d 205, 746 NYS2d 141 (1st Dept 2002).

Sending an email message under the heading “racism” that falsely stated that plaintiff’s office cubicle contained a statuette of a black man hanging from a noose was not sufficiently outrageous to be actionable, Como v Riley, 287 AD2d 416, 731 NYS2d 731 (1st Dept 2001).

Fabricating an email in plaintiff’s name in which plaintiff was made to appear to be a rude, petty, self-absorbed cartoonist was not so outrageous and shocking as to be actionable, nor was making statements via email encouraging people to “vomit” on plaintiff, Rall v Hellman, 284 AD2d 113, 726 NYS2d 629 (1st Dept 2001).

Allegations that a jail guard played an audiocassette containing anti-Semitic statements within plaintiff’s earshot while plaintiff was confined in a cell do not establish sufficiently outrageous conduct to be actionable, Ferguson v New York, 273 AD2d 103, 709 NYS2d 90 (1st Dept 2000). Allegations that defendant dumped a pile of cement on the sidewalk on front of plaintiff’s house, tossed lighted cigarettes into plaintiff’s backyard, threw eggs on his front steps, and threatened to paint a swastika on his house do not rise to the requisite level of outrageousness, Seltzer v Bayer, 272 AD2d 263, 709 NYS2d 21 (1st Dept 2000).

Allegations regarding an insurer’s failure to timely compensate plaintiff, leaving her without a home, adequate possessions or funds for living expenses for over a year, coupled with the accusation that plaintiff committed arson and submitted false statements under oath do not state a cause of action for intentional infliction of emotional distress, Cunningham v Security Mut. Ins. Co., 260 AD2d 983, 689 NYS2d 290 (3d Dept 1999).

A doctor allegedly screaming at the top of his voice at a patient for bringing her service dog into the examination room was not sufficiently outrageous as to be actionable, Albert v Solimon, 252 AD2d 139, 684 NYS2d 375 (4th Dept 1998), aff’d, 94 NY2d 771, 699 NYS2d 1, 721 NE2d 17 (1999).

Conduct of staff of nursing home, essentially caught in the middle of a family dispute, in connection with treatment of plaintiffs’ decedent was not sufficiently outrageous as to be actionable, Hart v Child’s Nursing Home Co., Inc., 298 AD2d 721, 749 NYS2d 297 (3d Dept 2002).

Commencement of litigation, even for the purpose of harassment and intimidation, is insufficient to support a claim for intentional infliction of emotional distress, Walentas v Johnes, 257 AD2d 352, 683 NYS2d 56 (1st Dept 1999); see Hartman v 536/540 E. 5th St. Equities, Inc., 19 AD3d 240, 797 NYS2d 73 (1st Dept 2005)

A bus driver’s rudeness and use of profanity toward a handicapped passenger does not meet the extreme and outrageous conduct standard, Stauber v New York City Transit Authority, 10 AD3d 280, 781 NYS2d 26 (1st Dept 2004).

A teacher’s use of a racial epithet, which was directed specifically at plaintiff, was not extreme and outrageous, when made in a classroom setting during a discussion about prejudice, when used for the purpose of conveying strong disapproval of such epithets, Graham ex rel. Graham v Guilderland Cent. School Dist., 256 AD2d 863, 681 NYS2d 831 (3d Dept 1998).

A funeral home’s misdelivery of cremated remains was not so outrageous as to be actionable, Sarlo v Fairchild Sons, Inc., 256 AD2d 322, 681 NYS2d 555 (2d Dept 1998).

A hospital’s investigation of whether plaintiff’s father’s death was caused by euthanasia, which investigation included retaining a criminal attorney, meeting with the District Attorney, implicating plaintiff in the death, and refusing to keep plaintiff abreast of the investigation, does not rise to the level of outrageous conduct, Dobisky v Rand, 248 AD2d 903, 670 NYS2d 606 (3d Dept 1998).

Defendants’ misreading of X-rays, which led defendants to erroneously conclude that foreign bodies in plaintiff’s abdomen were packages of narcotics, thereby causing a police investigation and invasive medical procedures, does not rise to the level of extreme and outrageous conduct, Berrios v Our Lady of Mercy Medical Center, 20 AD3d 361, 799 NYS2d 452 (1st Dept 2005).

The expulsion of the plaintiff from a tour for expressing her belief in Jesus Christ and in fundamentalist Christian principles was not outrageous conduct where the tour was organized to provide Jewish teenagers with a religious experience involving the observance and discussion of Jewish ritual, Cohn-Frankel v United Synagogue of Conservative Judaism, 246 AD2d 332, 667 NYS2d 360 (1st Dept 1998).

Failure of a seller and real estate broker to advise a home purchaser of the extent of termite infestation is not outrageous conduct, Bando v Achenbaum, 234 AD2d 242, 651 NYS2d 74 (2d Dept 1996).

An attorney’s fraudulent concealment of a loan that the attorney and client obtained by means of a forged power of attorney used to place a mortgage on plaintiff’s property did not rise to the level of outrageous conduct, Vasilopoulos on Behalf of Vasilopoulos v Romano, 228 AD2d 669, 645 NYS2d 501 (2d Dept 1996).

Falsely accusing someone of being anti-Semitic and biased in her treatment of Jews does not rise to the level of outrage required to recover under this cause of action, Herlihy v Metropolitan Museum of Art, 214 AD2d 250, 633 NYS2d 106 (1st Dept 1995).

Preventing plaintiff from attending his lover’s funeral and refusing to honor decedent’s commitment that plaintiff could continue to live in decedent’s home, is not so outrageous as to be actionable, nor is conveyance of decedent’s property without notice to the plaintiff, Plaza v Estate of Wisser, 211 AD2d 111, 626 NYS2d 446 (1st Dept 1995).

Obtaining decedent’s medical records against the wishes of the decedent’s estate by submitting an old medical expense reimbursement form signed by the decedent and representing that the form constituted a general authorization for the release of decedent’s medical records, is not so outrageous as to be actionable, Waldron v Ball Corp., 210 AD2d 611, 619 NYS2d 841 (3d Dept 1994).

Commencement of civil and criminal actions seeking enforcement of zoning laws and sending copies of a building inspection report to members of town boards and neighbors is not outrageous conduct, Deising v Esopus, 204 AD2d 940, 611 NYS2d 964 (3d Dept 1994).

Destroying an exam, even if motivated by personal animus toward the student, is not so outrageous as to be actionable, Silverman v New York University School of Law, 193 AD2d 411, 597 NYS2d 314 (1st Dept 1993).

Encouraging a family member to leave his employment in order to attend law school was not an act so outrageous as to exceed all bounds tolerated in a civilized society, Sud v Sud, 211 AD2d 423, 621 NYS2d 37 (1st Dept 1995).

A statement by counsel to an adverse party at trial that the latter would suffer heavily because of his lawyer’s failure to settle constituted a breach of ethics but did not rise to the level of actionable conduct, Nestlerode v Federal Ins. Co., 66 AD2d 504, 414 NYS2d 398 (4th Dept 1979).

Arresting plaintiff in front of co-workers is not so extreme and outrageous as to be actionable, Navarro v Federal Paper Bd. Co., Inc., 185 AD2d 590, 586 NYS2d 381 (3d Dept 1992).

Disclaiming liability for medical expenses pursuant to an insurance contract is not so extreme or outrageous as to exceed all bounds of decency, Estate of Coppersmith v Blue Cross and Blue Shield of Greater New York, 177 AD2d 373, 576 NYS2d 126 (1st Dept 1991).

Publicizing a recognizable photograph of plaintiff walking on the grounds of a psychiatric hospital does not state a cause of action for intentional infliction of emotional distress, Howell v New York Post Co., Inc., 81 NY2d 115, 596 NYS2d 350, 612 NE2d 699 (1993).

Intentional infliction of emotional distress is not established where defendant merely observed an incident involving the striking of infant plaintiff and defendant clapped her hands in approval, Clennan v Cooke, 202 AD2d 467, 609 NYS2d 44 (2d Dept 1994).

Similarly, sending letters threatening termination of electrical service does not constitute intentional infliction of emotional distress, Gallagher v Consolidated Edison of New York, 162 AD2d 657, 557 NYS2d 102 (2d Dept 1990).

Statements made at a public meeting, at which plaintiff was not present, that if the court refused to dismiss plaintiff’s lawsuit against her, she would have no alternative but to kill her, are insufficient to support a cause of action for intentional infliction of mental distress. Owen v Leventritt, 174 AD2d 471, 571 NYS2d 25 (1st Dept 1991).

Criticizing a guidance counselor’s presentation, calling his conduct insubordinate and characterizing plaintiff’s taking books from the school as “theft” do not rise to the level of extreme and outrageous conduct, Angel v Levittown Union Free School Dist. No. 5, 171 AD2d 770, 567 NYS2d 490 (2d Dept 1991).

Abandoning plaintiff and disabled car in the cold on the side of the road due to plaintiff’s inability to pay full towing charge until he arrived at his destination does not give rise to a cause of action for intentional infliction of emotional distress absent evidence that the towing company’s actions were especially calculated to cause serious mental distress, Kaplan v Dart Towing, Inc., 159 AD2d 610, 552 NYS2d 665 (2d Dept 1990).

Communicating to plaintiffs that they would be prevented from selling their apartment at a profit and that their life in the building would be made miserable does not state a cause of action for intentional infliction of mental distress, Smukler v 12 Lofts Realty, Inc., 156 AD2d 161, 548 NYS2d 437 (1st Dept 1989).

Asking theatre patrons to leave and summoning police for assistance when patrons failed to comply does not establish a cause of action for intentional infliction of mental distress, in the absence of wanton conduct, foul language, abuse of the plaintiff, accusations of immorality or other special circumstances of humiliation and indignity, Impastato v Hellman Enterprises, Inc., 147 AD2d 788, 537 NYS2d 659 (3d Dept 1989).

Dumping dirt in front of plaintiff’s driveway is not sufficiently egregious to sustain a claim for intentional infliction of emotional distress, Kusmierz v Baan, 144 AD2d 829, 534 NYS2d 786 (3d Dept 1988).

Refusing to grant additional credit to a company in financial difficulty is not such outrageous conduct as to give rise to a claim of extreme emotional distress, Garner v William Iselin & Co., Inc., 141 AD2d 429, 529 NYS2d 772 (1st Dept 1988).

Additional examples arising within an employment context include the following. Publicly accusing a teacher of violating the district’s policy prohibiting the showing of R rated movies after granting permission to the teacher to show the movie is not so extreme or outrageous as to be actionable, Clark v Schuylerville Cent. School Dist., 24 AD3d 1162, 807 NYS2d 175 (3d Dept 2005).

The disparagement of an employee, including the use of a vulgar epithet to describe the employee, does not constitute outrageous conduct, Dillon v New York, 261 AD2d 34, 704 NYS2d 1 (1st Dept 1999).

Questioning plaintiffs about the falsification of time sheets, terminating plaintiffs from employment and escorting plaintiffs to their desks to remove their personal items fails to satisfy the level of conduct necessary to support a claim for intentional infliction of emotional distress, Arrington v Liz Claiborne, Inc., 260 AD2d 267, 688 NYS2d 544 (1st Dept 1999).

Terminating a government employee who has expressed political views contrary to those of the incumbent administration does not rise to the level of actionable outrageous conduct, Cavanaugh v Doherty, 243 AD2d 92, 675 NYS2d 143 (3d Dept 1998).

A school board’s conduct in investigating corruption charges levied against an architect, who was ultimately exonerated, did not rise to the level of extreme and outrageous conduct, Di Orio v Utica City School Dist. Bd. of Educ., 305 AD2d 1114, 758 NYS2d 743 (4th Dept 2003).

Intentionally relaying false information to a hospital that the plaintiff, a nurse, had euthanized a patient was not sufficiently outrageous to state a cause of action for intentional infliction of emotional distress, La Duke v Lyons, 250 AD2d 969, 673 NYS2d 240 (3d Dept 1998).

Permitting crude and offensive statements of a sexually derisive nature to occur in the workplace is not sufficiently outrageous conduct to be actionable, Shea v Cornell University, 192 AD2d 857, 596 NYS2d 502 (3d Dept 1993).

Subjecting an employee to unwanted sexual advances, physical contact and verbal comments, does not give rise to a cause of action for intentional infliction of emotional distress, Zephir v Inemer, 305 AD2d 170, 757 NYS2d 851 (1st Dept 2003).

Firing plaintiff, an at-will employee, does not give rise to an action for intentional infliction of emotional distress, Bailey v New York Westchester Square Medical Centre, 38 AD3d 119, 829 NYS2d 30 (1st Dept 2007); DeFilippo v Xerox Corp., 223 AD2d 846, 636 NYS2d 463 (3d Dept 1996); Hurwitch v Kercull, 182 AD2d 1013, 582 NYS2d 568 (3d Dept 1992), and plaintiffs may not circumvent the at-will contract rule by merely asserting a claim for intentional infliction of emotional distress unless there are allegations of defendant’s extreme and outrageous conduct, Moore v Rockland, 192 AD2d 1021, 596 NYS2d 908 (3d Dept 1993).

However, the fact that there is no cause of action for wrongful discharge does not mean that an employer’s outrageous conduct or severe abuse must be condoned, simply because it is directed at an employee preliminary to termination, Vasarhelyi v New School for Social Research, 230 AD2d 658, 646 NYS2d 795 (1st Dept 1996).

Directing religious and ethnic slurs including “Hebe” and “kike” against an employee, while deplorable and reprehensible, does not state a cause of action for intentional infliction of mental distress, Leibowitz v Bank Leumi Trust Co. of New York, 152 AD2d 169, 548 NYS2d 513 (2d Dept 1989)

Terminating an at-will bank employee, characterizing her threat to remove and publish bank records as theft and extortion, requiring her to close her employee bank account, and refusing to give her a favorable letter of reference do not rise to the level of extreme and outrageous conduct, Krawtchuk v Banco Do Brasil, S.A., 183 AD2d 484, 583 NYS2d 403 (1st Dept 1992).

Discharging an employee during the workday, directing him not to return to his office, and disclosing the fact of discharge to other employees does not give rise to a cause of action for intentional infliction of emotional distress, Lapidus v New York City Chapter of the New York State Ass’n For Retarded Children, Inc., 118 AD2d 122, 504 NYS2d 629 (1st Dept 1986); see D’Avino v Trachtenburg, 149 AD2d 401, 539 NYS2d 755 (2d Dept 1989) and Leibowitz v Bank Leumi Trust Co. of New York, supra (plaintiff may not recast non-actionable wrongful discharge claim as intentional infliction of emotional distress).

Requiring a bank employee to submit to polygraphic examinations, a requirement imposed after the bank discovered cash shortages, is not such extreme, outrageous or atrocious conduct as to be actionable, Buffolino v Long Island Sav. Bank, FSB, 126 AD2d 508, 510 NYS2d 628 (2d Dept 1987).

Communicating to fellow employees that plaintiff criminally assaulted defendant, that plaintiff required psychiatric treatment, and that defendant feared being “blown away” by the plaintiff does not constitute conduct that exceeds all bounds usually tolerated by decent society, Misek-Falkoff v Keller, 153 AD2d 841, 545 NYS2d 360 (2d Dept 1989).

The withholding by a hospital of staff assistance to a nursing supervisor in an effort to compel her retirement does not constitute outrageous conduct, Oakley v St. Joseph’s Hosp., 116 AD2d 911, 498 NYS2d 218 (3d Dept 1986).

Unflattering comments by a school district superintendent concerning a teacher’s professional abilities do not suffice to establish a cause of action, Van Swol v Delaware Valley Cent. School Dist., 117 AD2d 962, 499 NYS2d 274 (3d Dept 1986).

Similarly, a parent’s derogatory remarks about her child’s teacher, describing the teacher as incompetent and ill-suited to teaching, do not give rise to a cause of action, Zuber v Bordier, 135 AD2d 709, 522 NYS2d 610 (2d Dept 1987).

Nor did intentional misrepresentations by an attorney to a client concerning the status of the client’s claim, Green v Leibowitz, 118 AD2d 756, 500 NYS2d 146 (2d Dept 1986).

Proselytizing, recruitment and indoctrination of new members by church is not such extreme conduct as to give rise to a cause of action, Meroni v Holy Spirit Ass’n for Unification of World Christianity, 119 AD2d 200, 506 NYS2d 174 (2d Dept 1986).

Demanding payment from the co-maker of a note without first proceeding against the collateral security creates no cause of action against the payee, State Bank of Albany v Duesler, 41 AD2d 1009, 344 NYS2d 114 (3d Dept 1973).

Publication of a newsworthy report concerning a contested matrimonial action is not such extreme or outrageous conduct as to sustain a cause of action, Freihofer v Hearst Corp., 65 NY2d 135, 490 NYS2d 735, 480 NE2d 349 (1985).

A statement by an insurance company’s agent that plaintiff could not expect to be supported by the insurer forever and the insurer’s attempt to disprove plaintiff’s claim were also not so extreme or outrageous as to give rise to a cause of action, Burlew v American Mut. Ins. Co., 63 NY2d 412, 482 NYS2d 720, 472 NE2d 682 (1984).

Failure to maintain the statutorily mandated confidentiality of certain records does not give rise to a claim for the intentional infliction of mental distress, Carpenter v Plattsburgh, 105 AD2d 295, 484 NYS2d 284 (3d Dept 1985), aff’d for reasons in AD opinion, 66 NY2d 791, 497 NYS2d 909, 488 NE2d 839 (1985).

Furnishing selective and incomplete information about suspicious no-fault insurance claims to prosecutor and withholding exculpatory matter does not give rise to a cause of action, Torian v Lumbermen’s Mut. Cas. Co., 120 AD2d 820, 502 NYS2d 105 (3d Dept 1986).

WHAT IS OUTRAGEOUS

But it is a question for the jury whether all reasonable bounds of decency were exceeded when the individual defendant vandalized plaintiffs’ property on five separate occasions and used his employer’s vehicles and fellow employees to harass and intimidate plaintiffs, Gray v Schenectady City School Dist., 86 AD3d 771, 927 NYS2d 442 (3d Dept 2011);

when defendant allegedly engaged in a constant campaign of harassment and intimidation, which included threatening to kill plaintiff and his children, Cavallaro v Pozzi, 28 AD3d 1075, 814 NYS2d 462 (4th Dept 2006);

when defendant, a university professor conducting a research project, allegedly engaged in a campaign of harassment by falsely claiming that meals served at several restaurants caused food poisoning to putative customers, 164 Mulberry Street Corp. v Columbia University, 4 AD3d 49, 771 NYS2d 16 (1st Dept 2004);

when defendant allegedly intentionally and maliciously engaged in a pattern of harassment, intimidation, humiliation and abuse, causing plaintiff unjustified demotions, suspensions, lost pay and psychological and emotional harm, Shannon v MTA Metro-North R.R., 269 AD2d 218, 704 NYS2d 208 (1st Dept 2000);

when defendant deliberately, systemically and maliciously harassed plaintiff over a period of years so as to injure him in his capacity as a tenant, Warner v Druckier, 266 AD2d 2, 697 NYS2d 610 (1st Dept 1999);

when defendant was responsible for a campaign of harassing telephone calls, Gill Farms Inc. v Darrow, 256 AD2d 995, 682 NYS2d 306 (3d Dept 1998);

when defendants handled the cremated remains of plaintiff’s deceased sister while making crude remarks about the remains during a radio show, Roach v Stern, 252 AD2d 488, 675 NYS2d 133 (2d Dept 1998);

when defendant yelled and gestured obscenely at plaintiff, followed her home, refused to leave the premises, followed her children and family around, and told plaintiff he knew where the children went to school and when they got out of school, Bunker v Testa, 234 AD2d 1004, 652 NYS2d 181 (4th Dept 1996);

when the president of the academic institution that employed plaintiff engaged criminal attorneys to conduct an investigation of plaintiff, intimating prosecution, and where plaintiff was subjected to ten hours of intense interrogation and was terminated from her employment when she requested that another employee be present during the second day of interrogation, Vasarhelyi v New School for Social Research, 230 AD2d 658, 646 NYS2d 795 (1st Dept 1996)

when defendant employer subjected plaintiff employee, who had an underlying psychological condition known to the defendant, to eight hours of threatening interrogation by security officers investigating drug use, Elson v Consolidated Edison Co. of New York, Inc., 226 AD2d 288, 641 NYS2d 294 (1st Dept 1996)

when defendant, a psychiatrist, persuaded his patient to have a sexual relationship with him for therapeutic benefit and he made numerous harassing telephone calls to her after she terminated their sexual relationship, Sanchez v Orozco, 178 AD2d 391, 578 NYS2d 145 (1st Dept 1991)

when defendant sent a taunting letter to a girl who hoped to marry him, Halio v Lurie, 15 AD2d 62, 222 NYS2d 759 (2d Dept 1961); when defendant forcibly entered a residence and wantonly destroyed plaintiff’s property, Murphy v Murphy, 109 AD2d 965, 486 NYS2d 457 (3d Dept 1985)

when defendant threatened bodily harm to seller and purchaser if a house were sold to a “colored” purchaser, Ruiz v Bertolotti, 37 Misc2d 1067, 236 NYS2d 854 (Sup 1962), aff’d, 20 AD2d 628, 245 NYS2d 1003 (2d Dept 1963)

when defendant destroyed windows of house where a woman and children were staying, thus exposing them to severe cold, and threatening her life by displaying a bullet, Weisman v Weisman, 108 AD2d 853, 485 NYS2d 570 (2d Dept 1985);

when defendant telephoned plaintiff’s home, employer, landlord, relatives and neighbors as part of a program to collect a debt, Long v Beneficial Finance Co. of New York, 39 AD2d 11, 330 NYS2d 664 (4th Dept 1972)

when defendant filed police report falsely charging plaintiff with leaving the scene of an accident, Levine v Gurney, 149 AD2d 473, 539 NYS2d 967 (2d Dept 1989); but see Roberts v Pollack, 92 AD2d 440, 461 NYS2d 272 (1st Dept 1983);

when defendant claimed that a landlord and his attorneys commenced baseless eviction proceedings and other legal actions against an apartment house tenant, and that the landlord also interrupted or terminated services to the apartment, interfered with tenant’s mail, and verbally abused tenant, as retaliation for tenant’s having successfully opposed the landlord’s plan for cooperative conversion, Green v Fischbein Olivieri Rozenholc & Badillo, 119 AD2d 345, 507 NYS2d 148 (1st Dept 1986);

when defendant confined plaintiff in an office for several hours, made threats and used profane language, to coerce his resignation from employment and obtain waiver of benefits, Kaminski v United Parcel Service, 120 AD2d 409, 501 NYS2d 871 (1st Dept 1986)

when defendant made false charges in a proceeding against a high school principal and spread false rumors that the principal had been involved in an affair, had used student funds for his own benefit, and used associates to work on his house during school hours, in order to coerce his resignation, Sullivan v Board of Educ. of Eastchester Union Free School Dist., 131 AD2d 836, 517 NYS2d 197 (2d Dept 1987)

when defendant commenced a class action, knowing that the class would not be certified, for the purposes of exacting a financial settlement, Halperin v Salvan, 117 AD2d 544, 499 NYS2d 55 (1st Dept 1986).

Nevertheless, certain conduct may be so outrageous as to warrant a determination of liability in favor of the plaintiff, as a matter of law, Sawicka v Catena, 79 AD3d 848, 912 NYS2d 666 (2d Dept 2010) (business owner’s installing video camera in workplace restroom to surreptitiously view and record plaintiff sufficient as matter of law); Lovcen Const. Co., Inc. v Culbreth, 196 AD2d 445, 601 NYS2d 286 (1st Dept 1993) (summary judgment appropriate where documentation of hundreds of hang-up phone calls was unrefuted); Doe v Esposito, 114 AD2d 992, 495 NYS2d 432 (2d Dept 1985) (defendant who was found guilty of several counts of incestuous rape was, as a matter of law, subject to civil liability for intentional infliction of mental distress); see also Harvey v Cramer, 235 AD2d 315, 653 NYS2d 3 (1st Dept 1997) (an intentional misdiagnosis of HIV would satisfy the outrageousness requirement), but see Richard L. v Armon, 144 AD2d 1, 536 NYS2d 1014 (2d Dept 1989).

Intent or Recklessness

The first three sentences of the second paragraph of the pattern charge dealing with intent are taken from PJI 3:1 supra.

Recklessness will also give rise to a cause of action, 164 Mulberry Street Corp. v Columbia University, 4 AD3d 49, 771 NYS2d 16 (1st Dept 2004); Dana v Oak Park Marina, Inc., 230 AD2d 204, 660 NYS2d 906 (4th Dept 1997) (citing PJI); Beck v Libraro, 220 App Div 547, 221 NYS 737 (2d Dept 1927); Callarama v Associates Discount Corp. of Del., 69 Misc2d 287, 329 NYS2d 711 (Sup 1972); see Preiser v Wielandt, 48 App Div 569, 62 NYS 890 (2d Dept 1900); Restatement, Torts 2d, § 46, Comment i; Annot: 64 ALR2d 100, 150; see also Salamone v Oak Park Marina, Inc., 259 AD2d 987, 688 NYS2d 362 (4th Dept 1999) (installation of video camera in ladies’ rest room in violation of General Business Law § 395-b(2) supports action for reckless infliction of emotional distress whether or not plaintiff actually appears in the videotapes). For cases supporting the definition of recklessness set forth in the fifth sentence of the second paragraph of the pattern charge, see PJI 2:278.

Intent or recklessness is an essential element. Intent exists when defendant’s purpose is to cause emotional distress, see Argyll v International Sec. Bureau, Inc., 16 AD2d 921, 229 NYS2d 467 (1st Dept 1962),

or when defendant knows that the circumstances are such that emotional distress is substantially certain to follow, Mitran v Williamson, 21 Misc2d 106, 197 NYS2d 689 (Sup 1960); Bergman v Rubenfeld, 66 NYS2d 895 (NY City Ct 1946), nor; Restatement, Torts 2d, §§ 8A, 46, Comment i; see Caballero v First Albany Corp., 237 AD2d 800, 654 NYS2d 866 (3d Dept 1997).

Note that except in assault cases a defendant who intends but fails to accomplish some purpose other than causing mental distress (e.g., to imprison plaintiff) will not be liable for causing mental disturbance, though the act has in fact caused plaintiff to sustain mental distress, Argyll v International Sec. Bureau, Inc., supra; Restatement, Torts 2d, § 47.

The reason is that, except in assault cases, the defendant did not possess the requisite specific intent.

Where defendant may have acted to achieve some other purpose, plaintiff must show that the desire to cause emotional distress was more than incidental to defendant’s proper motive, O’Rourke v Pawling Sav. Bank, 80 AD2d 847, 444 NYS2d 471 (2d Dept 1981); see Curtin v Bowery Sav. Bank, 150 AD2d 327, 540 NYS2d 856 (2d Dept 1989) (bank’s unauthorized entry into customer’s safe deposit box not outrageous).

The requisite intent was found where defendants repeatedly made intentionally false post termination representations to the unemployment office and to plaintiff’s prospective employers that plaintiff had never been employed by them, Valenza v Emmelle Coutier, Inc., 227 AD2d 133, 641 NYS2d 305 (1st Dept 1996).

Collateral estoppel does not apply to a guilty plea under Penal Law § 263.05 for using a child in a sexual performance because that crime does not require intent to cause emotional distress, Roe v Barad, 230 AD2d 839, 647 NYS2d 14 (2d Dept 1996).

The “transferred intent” doctrine, recognized in other intentional torts, has not been applied in this State to outrageous conduct.

The defendant’s conduct must be directed toward plaintiff. Thus, a bystander whose sensibilities may be so shocked as to cause mental distress cannot recover, even when the bystander is closely related to the person toward whom the conduct was directed, Kalina v General Hospital of Syracuse, 31 Misc2d 18, 220 NYS2d 733 (Sup 1961), aff’d on Special Term opinion, 18 AD2d 757, 235 NYS2d 808 (4th Dept 1962), aff’d, 13 NY2d 1023, 245 NYS2d 599, 195 NE2d 309 (1963) (parents of son circumcised without authority and in violation of religious requirements); see 1 Harper & James,

The Law of Torts 671, § 69.3; and 15 ALR2d 108, 129. The rule has been criticized, Prosser, Intentional Infliction of Mental Suffering; A New Tort, 37 Mich L Rev 874, 889; Prosser, Transferred Intent, 45 Texas L Rev 650, and is inconsistent with Restatement, Torts 2d, § 46(2) but is consistent with the rule applied to unintentional torts, Bovsun v Sanperi, 61 NY2d 219, 473 NYS2d 357, 461 NE2d 843 (1984).

Injury

The distress caused plaintiff must be severe, Christenson v Gutman, 249 AD2d 805, 671 NYS2d 835 (3d Dept 1998); see Richard L. v Armon, 144 AD2d 1, 536 NYS2d 1014 (2d Dept 1989), for some degree of distress is a part of everyday living, Restatement, Torts 2d, § 46,

Comment j, and, further, mental disturbance is easily simulated. An objective standard is used to determine whether the injury is sufficiently severe to warrant imposition of liability, see Richard L. v Armon, supra; Restatement, Torts 2d, § 46, comment j. A claim of severe emotional distress must be supported by medical evidence, Roche v Claverack Co-op. Ins. Co., 59 AD3d 914, 874 NYS2d 592 (3d Dept 2009); Walentas v Johnes, 257 AD2d 352, 683 NYS2d 56 (1st Dept 1999); see Leone v Leewood Service Station, Inc., 212 AD2d 669, 624 NYS2d 610 (2d Dept 1995).

Whether plaintiff’s mental suffering was genuine and extreme is a question for the jury, Murphy v Murphy, 109 AD2d 965, 486 NYS2d 457 (3d Dept 1985); Halio v Lurie, 15 AD2d 62, 222 NYS2d 759 (2d Dept 1961); and Restatement, Torts 2d, § 46, Comment d.

If physical harm results from the emotional distress, recovery for such harm also is permitted, Restatement, Torts 2d, § 46(1); see PJI 2:284.

No claim can be recognized “arising out of the differences which occur between persons who, although not married, have been living together as husband and wife for an extended period of time,” Baron v Jeffer, 98 AD2d 810, 469 NYS2d 815 (2d Dept 1983). However, recovery may be had where the conduct complained of was committed after the relationship in fact between the parties had terminated, Murphy v Murphy, 109 AD2d 965, 486 NYS2d 457 (3d Dept 1985).

Defenses

Justification will defeat the action, O’Rourke v Pawling Sav. Bank, 80 AD2d 847, 444 NYS2d 471 (2d Dept 1981). T

Thus, a publication which incidentally inflicts mental distress but is about a matter of public concern is not actionable, Costlow v Cusimano, 34 AD2d 196, 311 NYS2d 92 (4th Dept 1970); see also Freihofer v Hearst Corp., 65 NY2d 135, 490 NYS2d 735, 480 NE2d 349 (1985).

But the existence of a legitimate motive for defendant’s conduct will not defeat the action if defendant planned to achieve his or her purpose by inflicting emotional distress, O’Rourke v Pawling Sav. Bank, 80 AD2d 847, 444 NYS2d 471 (2d Dept 1981); Long v Beneficial Finance Co. of New York, 39 AD2d 11, 330 NYS2d 664 (4th Dept 1972).

As a matter of public policy, one spouse cannot recover damages against the other for intentional infliction of emotional distress, Xiao Yang Chen v Fischer, 6 NY3d 94, 810 NYS2d 96, 843 NE2d 723 (2005); Weicker v Weicker, 22 NY2d 8, 290 NYS2d 732, 237 NE2d 876 (1968); Sareen v Sareen, 51 AD3d 765, 858 NYS2d 285 (2d Dept 2008); Nacson v Semmel, 292 AD2d 432, 738 NYS2d 888 (2d Dept 2002). Other jurisdictions have held to the contrary, see e.g., Davis v Bostick, 282 Or 667, 580 P2d 544 (1978); Massey v Massey, 867 SW2d 766 (Tex 1993); Henriksen v Cameron, 622 A2d 1135 (Me 1993); Simmons v Simmons, 773 P2d 602 (Colo App 1988); Koepke v Koepke, 52 Ohio App 3d 47, 556 NE2d 1198 (6th Dist Wood Co 1989); Hakkila v Hakkila, 112 NM 172, 1991-NMCA-029, 812 P2d 1320 (App 1991); Lusby v Lusby, 283 Md 334, 390 A2d 77 (1978).

However, New York does recognize a cause of action brought by one parent against the other for tortious interference with custodial rights, see Casivant v Greene County Community Action Agency, Inc., 234 AD2d 818, 652 NYS2d 115 (3d Dept 1996), aff’d, 90 NY2d 969, 665 NYS2d 952, 688 NE2d 1034 (1997).

Similarly, public policy bars a claim for intentional infliction of emotional distress against a governmental entity, Wyllie v District Atty. of County of Kings, 2 AD3d 714, 770 NYS2d 110 (2d Dept 2003); Liranzo v New York City Health and Hospitals Corp., 300 AD2d 548, 752 NYS2d 568 (2d Dept 2002); Dillon v New York, 261 AD2d 34, 704 NYS2d 1 (1st Dept 1999); Lauer v New York, 240 AD2d 543, 659 NYS2d 57 (2d Dept 1997); see Tatta v State, 51 AD3d 1295, 857 NYS2d 815 (3d Dept 2008); Augat v State, 244 AD2d 835, 666 NYS2d 249 (3d Dept 1997); Van Buskirk v Bleiler, 46 AD2d 707, 360 NYS2d 88 (3d Dept 1974) (rule applies to individuals acting in official capacity).

If, however, the conduct constitutes a violation of the Civil Rights Act, 42 USC § 1983, malice or recklessness will give rise to liability, Smith v Wade, 461 US 30, 103 SCt 1625 (1983); see PJI 3:60.

Since intentional injuries are not covered by the Workers’ Compensation Law, and the intentional infliction of mental distress is an intentional tort, workers’ compensation is not a bar to such an action by an employee against his or her employer, Burlew v American Mut. Ins. Co., 63 NY2d 412, 482 NYS2d 720, 472 NE2d 682 (1984); Randall v Tod-Nik Audiology, Inc., 270 AD2d 38, 704 NYS2d 228 (1st Dept 2000); Elson v Consolidated Edison Co. of New York, Inc., 226 AD2d 288, 641 NYS2d 294 (1st Dept 1996); see Jaffe v National League for Nursing, 222 AD2d 233, 635 NYS2d 9 (1st Dept 1995).

A cause of action for intentional infliction of emotional distress brought by an employee against a co-employee is not barred by the plaintiff’s receipt of workers’ compensation benefits, where the misconduct arose from purely personal motives and was not in furtherance of the employer’s business, Hanford v Plaza Packaging Corp., 2 NY3d 348, 778 NYS2d 768, 811 NE2d 30 (2004). For a discussion of the exclusivity provisions of the Workers’ Compensation Law, see Introductory Statement preceding PJI 2:215.

Physicians, other health care professionals, and law enforcement officers are required to make reports of child abuse or maltreatment, are civilly liable for damages proximately caused by the failure to report, but are immune from liability for reports made in good faith, with good faith to be “presumed,” Social Services Law §§ 413419. The qualified immunity provided by statute applies to claims for the intentional infliction of emotional distress made by parents suspected of abuse. The defendant need not submit conclusive evidence of abuse; the immunity attaches when there is reasonable cause to suspect that the child was abused and that defendant acted in good faith in discharging a statutory duty, Kempster v Child Protective Services of Dept. of Social Services of Suffolk County, 130 AD2d 623, 515 NYS2d 807 (2d Dept 1987). Whether or not the defendant is a mandated reporter under the statute and, if so, whether the presumption of good faith to which such a reporter is entitled was rebutted may present questions of fact for a jury, Lieberman v Scully, 273 AD2d 279, 709 NYS2d 583 (2d Dept 2000).

Where the intentional wrongdoing does not constitute conduct within the scope of employment, an assistant principal who sues a principal for intentional infliction of emotional distress is not required to comply with the notice of claim provision of Education Law § 3813(2), Radvany v Jones, 184 AD2d 349, 585 NYS2d 343 (1st Dept 1992).

First Amendment Considerations

In some cases, the conduct underlying an intentional-infliction-of-emotional-distress claim involves hurtful verbal expression. In such case, the protection afforded by the First Amendment may be implicated, particularly where the hurtful expression involves matters of public concern, Snyder v Phelps, 131 SCt 1207 (2011); Hustler Magazine, Inc. v Falwell, 485 US 46, 108 SCt 876 (1988). Thus, in Hustler Magazine, Inc. v Falwell, supra, the Supreme Court held that a public figure who had been the subject of an offensive parody in a published advertisement could not recover for intentional infliction of emotional distress, at least where the advertisement did not make statements that were false, defamatory and made with actual malice. In so ruling, the Court rejected a contention by plaintiff that the “outrageousness” of the advertisement, the alleged fact that it was intended to cause emotional distress and the further fact that it caused such distress brought it outside the constitutional protections for free speech. Instead, the Hustler Magazine Court held, a public figure or public official cannot recover for extreme emotional distress because of a publication without showing that the publication contains a false statement of fact that was made with actual malice.

The effect of the First Amendment on intentional-infliction-of-emotional distress claims asserts by non-public figures was examined in Snyder v Phelps, 131 SCt 1207 (2011). In Snyder, the family of a U.S. Marine who had died in combat sued to recover for the emotional distress that had been inflicted by members of a church who had picketed outside the funeral carrying placards that contained offensive and hateful placards about homosexuality, the Catholic Church, the United States and the U.S. military. As in Hustler Magazine, Inc. v Falwell, 485 US 46, 108 SCt 876 (1988), the Court concluded in Phelps that the First Amendment was a complete defense to the state-law cause of action for intentional infliction of emotional distress, since the claim was based on the content of the picketers’ placards and that content involved matters of public concern. The Phelps Court stressed that there had been no violence, shouting or profanity associated with the church group’s picketing and that the picketing had taken place on a public street, the “archetype” of a public forum. The Phelps Court also noted that the “context” of the protest, i.e., a funeral, did not alter the First Amendment analysis. Finally, in rejecting plaintiff’s intentional-infliction-of-emotion-distress claim, the Supreme Court observed that none of the well-recognized categorical exceptions to protected speech, such as “fighting words” or “obscenity,” were at issue, Snyder v Phelps, supra.

Damages

General and special damages proximately caused are recoverable, but special damages need not be pleaded or shown to make out a cause of action, Laurie Marie M. v Jeffrey T.M., 159 AD2d 52, 559 NYS2d 336 (2d Dept 1990), aff’d, 77 NY2d 981, 571 NYS2d 907, 575 NE2d 393 (1991) (citing PJI); Halperin v Salvan, 117 AD2d 544, 499 NYS2d 55 (1st Dept 1986); Long v Beneficial Finance Co. of New York, 39 AD2d 11, 330 NYS2d 664 (4th Dept 1972); Halio v Lurie, 15 AD2d 62, 222 NYS2d 759 (2d Dept 1961).

Punitive damages may also be recovered, Laurie Marie M. v Jeffrey T.M., 159 AD2d 52, 559 NYS2d 336 (2d Dept 1990), aff’d, 77 NY2d 981, 571 NYS2d 907, 575 NE2d 393 (1991) (intrafamily sexual abuse); Leopold v Britt, 58 AD2d 856, 396 NYS2d 680 (2d Dept 1977); see Gostkowski v Roman Catholic Church of Sacred Hearts of Jesus and Mary, 262 NY 320, 186 NE 798 (1933); Le Mistral, Inc. v Columbia Broadcasting System, 61 AD2d 491, 402 NYS2d 815 (1st Dept 1978).

Punitive damages, however, may not be awarded against an employer for the acts of an employee in the absence of proof that the employer encouraged, condoned or ratified the employee’s conduct, see PJI 3:6. Punitive damages are also not recoverable in an action for intentional emotional distress where the conduct is merely incidental to proper business motives, O’Dell v New York Property Ins. Underwriting Ass’n, 145 AD2d 791, 535 NYS2d 777 (3d Dept 1988) (punitive damages unavailable against underwriting association absent showing that duration of investigation was inordinate or that attempt to depose plaintiff’s deceased husband was something other than unfortunate inadvertence).

Statute of Limitations

The statute of limitations for claims of intentional infliction of emotional distress is one year, CPLR 215(3).

Inasmuch as accrual occurs when all elements of the tort are established, the statute of limitations does not begin to run until plaintiff suffered severe emotional distress,

Schultes v Kane, 50 AD3d 1277, 856 NYS2d 684 (3d Dept 2008); Dana v Oak Park Marina, Inc., 230 AD2d 204, 660 NYS2d 906 (4th Dept 1997).

Where plaintiff can establish a continuing course of conduct that terminated within one year of commencement of suit, the suit is timely, Shannon v MTA Metro-North R.R., 269 AD2d 218, 704 NYS2d 208 (1st Dept 2000); Dana v Oak Park Marina, Inc., 230 AD2d 204, 660 NYS2d 906 (4th Dept 1997); Drury v Tucker, 210 AD2d 891, 621 NYS2d 822 (4th Dept 1994); Wolff v City of New York Financial Services Agency (FISA), 939 F Supp 258 (SDNY 1996); Bonner v Guccione, 916 F Supp 271 (SDNY 1996); Neufeld v Neufeld, 910 F Supp 977 (SDNY 1996); but see Foley v Mobil Chemical Co., 214 AD2d 1003, 626 NYS2d 906 (4th Dept 1995) (overruled in Dana v Oak Park Marina, Inc., supra).

Where a defendant’s misrepresentation intentionally prevents the timely filing of an action, the defendant is estopped from raising the defense of the statute of limitations where plaintiff commences an action within a reasonable time after the facts giving rise to the estoppel have ceased to be operational, see Simcuski v Saeli, 44 NY2d 442, 406 NYS2d 259, 377 NE2d 713 (1978). However, in no case will the doctrine of estoppel be available to a plaintiff who delays beyond the length of the legislatively prescribed period after the discovery of the relevant facts, Campbell v Chabot, 189 AD2d 746, 592 NYS2d 423 (2d Dept 1993). The fact that an action is timely commenced against a municipal defendant within one year and ninety days does not preserve the action against an individual defendant, notwithstanding the municipality’s duty to defend the individual, Tumminello v New York, 212 AD2d 434, 622 NYS2d 714 (1st Dept 1995).