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WILSON v. CONRAIL

March 12, 1993

JESSEY J. WILSON, SR., Plaintiff,
v.
CONSOLIDATED RAIL CORPORATION, Defendant.


McCurn


The opinion of the court was delivered by: NEAL P. MCCURN

MEMORANDUM-DECISION AND ORDER

 INTRODUCTION

 On January 15, 1993, this court granted defendant Consolidated Rail Corporation's ("Conrail") motion for summary judgment on the ground that plaintiff Jessy J. Wilson, Sr. had failed to establish a prima facie case of negligent infliction of emotional distress. Mr. Wilson now moves for reconsideration of this decision based upon his assertion that "certain questions regarding New York law need to be more fully addressed before the Court can properly render its decision." See Plaintiff's Memorandum of Law at 1. In opposition, Conrail argues that Mr. Wilson is not entitled to reconsideration because he has failed to state sufficient grounds under the applicable law to warrant such relief. See Defendant's Memorandum of Law at 2.

 BACKGROUND

 The facts underlying this action were set forth in detail in this court's memorandum-decision and order dated January 15, 1993. See Wilson v. Consolidated Rail Corp., 810 F. Supp. 411 (N.D.N.Y. 1993). Therefore, the court will reiterate only those facts which are necessary to its determination of the present motion. Mr. Wilson commenced this action against his employer Conrail pursuant to the Federal Employers Liability Act ("FELA"), 45 U.S.C. §§ 51-60, to recover damages for injuries he sustained while employed by Conrail. Id. at *1. His cause of action was based upon a claim of negligent infliction of emotional distress. As the court stated in its decision

 
in order to decide whether plaintiff's cause of action can withstand defendant's motion for summary judgment, the court must make two determinations. First, the court must ascertain whether plaintiff has established the existence of the elements essential to his claim of negligent infliction of emotional distress. See Celotex, 477 U.S. at 322, 106 S. Ct. at 2552, 91 L. Ed. 2d 265 (1986). If the answer to this inquiry is "yes," then the court must decide if plaintiff has established that a genuine issue of material fact exists as to whether such a claim is cognizable under the FELA when the injuries complained of are purely emotional.

 Wilson, at *11-12.

 In order to make its first determination, the court looked for guidance to New York substantive law. After reviewing the applicable case law, the court concluded that

 
although physical injury or impact is no longer required to maintain a cause of action for negligent infliction of emotional distress in New York, the plaintiff must nevertheless demonstrate that he was put in fear for his personal safety as a result of a traumatic event. (citations omitted) Moreover, such a cause of action requires that the plaintiff show that the defendant engaged in extreme or outrageous conduct recklessly causing severe emotional injury. (citations omitted)

 Wilson, at *14.

 The court also noted that "although plaintiff appears to agree with the court that New York substantive law provides the relevant rules of decision for this issue, he makes no effort to apply the applicable law to the facts of this case." Id. at *17. Thus, the court concluded that because plaintiff had failed to allege any facts which demonstrated that Conrail's actions either endangered his physical safety or put him in fear of such safety, he had failed to establish a prima facie case of negligent infliction of emotional distress under New York law. Id. at *20. Based upon this conclusion, the court held that no genuine issue of material fact existed with respect to his claim and that, therefore, Conrail was entitled to judgment as a matter of law. Id. Accordingly, the court granted Conrail's motion for summary judgment.

 DISCUSSION

 Mr. Wilson faces a heavy burden in pursuing this ...


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