In its March 28, 2022, decision in this matter, this court granted the branch of defendants motion for summary judgment that sought dismissal of plaintiffs claims for negligent infliction of emotional distress. (See NYSCEF No. 264, at Tr. 18-19 [transcript of decision delivered on the record]; NYSCEF No. 250 [order memorializing decision].) Plaintiffs now move to reargue that aspect of this courts March 2022 decision. The motion is denied.
DISCUSSION
As this court explained in its prior decision, the Appellate Division, First Department, requires negligent-infliction-of-emotional-distress claims to satisfy three elements: (i) defendant breached a duty owed to plaintiff; (ii) the breach unreasonably endangers plaintiffs safety; and (iii) the breach involved extreme or outrageous conduct. (See NYSCEF No. 264, at Tr. 18-19, citing Sheila C. v Povich, 11 AD3d 120, 131 [1st Dept 2004].) Plaintiffs raised a factual dispute requiring trial about the first element, but did not attempt to establish the other two. This court therefore granted summary judgment dismissing plaintiffs negligent-infliction claims. (See id.)
In seeking reargument, plaintiffs do not contend that this court misunderstood or misapplied Sheila C. Instead, plaintiffs position is that (i) Sheila C. was erroneous when it was issued; and (ii) it was impliedly overruled in any event by the Court of Appeals decision in Ornstein v New York City Health & Hosps. Corp. (10 NY3d 1, 6 [2008]). (See NYSCEF No. 255 at 5-8.)
To the extent plaintiffs are contending that this court should decline to follow the First Departments decision in Sheila C. as poorly reasoned, and should instead follow the Appellate Division, Second Departments negligent-infliction decisions in Taggart v Costabile (131 AD3d 243, 253-254 [2d Dept 2015) and Hering v Lighthouse 2001, LLC (21 AD3d 449, 451 [2d Dept 2005]), this court may not accept plaintiffs invitation. Plaintiffs challenge to the First Departments approach to this area of the law must be made instead to the First Department.
Plaintiffs fare no better in arguing that this court failed to recognize Ornsteins putative overruling of Sheila C. Whatever the strengths and weaknesses of plaintiffs reading of Ornstein considered in isolation—a matter on which this court expresses no opinion—this court does not write on a blank slate. The First Department has repeatedly held since Ornstein that the three elements of negligent infliction of emotional distress set out in Sheila C. continue to be necessary conditions of that cause of action. (See e.g. Parker v. Trustees of the Spence Sch., Inc., 205 AD3d 459, 460 [1st Dept 2022] [affirming dismissal of negligent-infliction claim for lack of extreme and outrageous conduct]; Waterbury v. New York City Ballet, Inc., 205 AD3d 154, 165 [1st Dept 2022] [affirming dismissal of negligent-infliction claim for failure to allege that the plaintiff was placed in physical danger or reasonably fear[ed] that she has been]; Winslow v New York-Presbyt./Weill-Cornell Med. Ctr., 203 AD3d 533, 534 [1st Dept 2022] [affirming dismissal of negligent-infliction claim for failure to allege that defendants conduct unreasonably endanger[ed] [plaintiffs] physical safety or caus[ed] him to fear for his own safety].) This courts adherence to the governing precedent in this department does not warrant leave to reargue.
Accordingly, it is
ORDERED that plaintiffs motion for leave to reargue this courts March 28, 2022, decision is denied.
8/5/2022
Gerald Lebovits, J.