physical contact — not plaintiff's crass comments — that
precludes summary judgment on plaintiff's assault claim. See
Masters v. Becker, 22 A.D.2d 118, 254 N.Y.S.2d 633, 635 (2d
Dep't 1964) ("A plaintiff in an action to recover damages for an
assault founded on bodily contact must prove only that there was
bodily contact; that such contact was offensive; and that the
defendant intended to make the contact.").
B. Intentional Infliction of Emotional Distress
A cause of action for intentional infliction of emotional
distress under New York law has four elements: "(1) extreme and
outrageous conduct; (2) intent to cause, or reckless disregard of
a substantial probability of causing, severe emotional distress;
(3) a causal connection between the conduct and the injury; and
(4) severe emotional distress." Stuto v. Fleishman,
164 F.3d 820, 827 (2d Cir. 1999). Moreover, there will be no liability
unless "`the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable
in a civilized society.'" Id. (quoting Howell v. New York Post
Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699
(1993)). Whether the conduct alleged may reasonably be regarded
as sufficiently outrageous and extreme to permit recovery is a
matter for the Court to decide. See id.
Chapman's first contention is that plaintiff's claim is
deficient because she has failed to establish that his conduct
was intended to cause severe emotional distress. See Chapman
Mem. at 5-6. Indeed, he notes, plaintiff has testified that she
did not know what Chapman's motivation was. See Wahlstrom Dep.
at 448-49. This argument fails, however, because plaintiff need
not show that Chapman actually intended to cause her emotional
harm. See Galella v. Onassis, 353 F. Supp. 196, 230 (S.D.N Y
1972), aff'd in relevant part, 487 F.2d 986 (2d Cir. 1973);
Mitran v. Williamson, 21 Misc.2d 106, 197 N.Y.S.2d 689, 692
(Sup.Ct. 1960). Plaintiff is only required to allege facts
"giv[ing] rise to a clear inference they were intended to cause
severe emotional distress." Persaud v. S. Axelrod Co., No. 95
Civ. 7849, 1996 WL 11197, at *4 (S.D.N.Y. Jan. 10, 1996); see
also Doe v. Allstate Ins. Co., 187 A.D.2d 181, 596 N.Y.S.2d 603,
605 (4th Dep't 1993) ("Abuse, regardless of the form it takes,
must be deemed intentional. Such conduct is inherently harmful
and an intent to injure must be inferred as a matter of law.").
The question of intent is not for the Court to decide; it is
within the province of the jury. See Persaud, 1996 WL 11197, at
*4 n. 8.
Second, Chapman characterizes plaintiff's claim as "involv[ing]
nothing more than hurt feelings, insults, indignities, threats
and annoyances which are not actionable as an intentional
infliction of emotional distress." Chapman Mem. at 7.
Nonetheless, sexual harassment can, if sufficiently outrageous
and extreme, give rise to a claim for intentional infliction of
emotional distress. See Funk v. F&K Supply, 43 F. Supp.2d 205,
219-20 (N.D.N.Y. 1999). In fact, "[i]n the employment context,
sexual harassment cases comprise the bulk of intentional
infliction of emotional distress actions where plaintiffs
prevail." Salvatore v. KLM Royal Dutch Airlines, No. 98 Civ.
2450, 1999 WL 796172, at *2 (S.D.N.Y. 1999); see also
Seepersad, 1998 WL 474205, at *6; Bonner v. Guccione,
916 F. Supp. 271, 276 (S.D.N.Y. 1996). To be actionable, the conduct
complained of must be particularly "outrageous in character" and
"extreme in degree." Martin v. Citibank, N.A., 762 F.2d 212,
220 (2d Cir. 1985).
Consequently, in the "rare instances" where New York courts
have recognized a claim for intentional infliction of emotional
distress in the employment context, the claims have alleged not
merely sexual harassment, but "more significantly, battery."
Gerzog v. London Fog Corp., 907 F. Supp. 590, 604 (E.D.N Y
1995) (citing Koster v. Chase Manhattan Bank, N.A., 609 F. Supp. 1191,
1198 (S.D.N.Y. 1985)
(Leisure, J.) (finding conduct sufficiently outrageous where
employer forced plaintiff into an ongoing sexual relationship);
O'Reilly v. Executone, Inc., 121 A.D.2d 772, 503 N.Y.S.2d 185,
186 (3d Dep't 1986) (affirming denial of motion to dismiss where
plaintiff had been subjected to physical sexual contact, jokes,
pornography, and erotica); Collins v. Willcox, Inc.,
158 Misc.2d 54, 600 N.Y.S.2d 884, 885-86 (Sup. Ct. 1992) (holding
that "a pattern of behavior that continually put [plaintiff] in
embarrassing, humiliating and demeaning positions" that included
sexual harassment and battery "might well rise to the level of
outrageous")); see also Salvatore, 1999 WL 796172, at *2-*3
(finding that plaintiffs who alleged episodes of harassment,
including "minor physical abuse," had stated claims for
intentional infliction of emotional distress); Sowemimo, 43
F. Supp.2d at 491 ("Courts have observed that a plaintiff must
allege sexual battery in order to survive . . . summary judgment
in the sexual harassment context. By claiming that [defendant]
groped her breast, [plaintiff] has raised an issue of fact as to
whether [defendant's] conduct rises to the level demanded under
New York law."); Archer v. Economic Opportunity Comm'n,
30 F. Supp.2d 600, 609-10 (E.D.N.Y. 1998) (denying summary judgment
on plaintiff's allegation of "a single incident of harassment . .
. involving actual unwanted sexual contact"); Rivera v.
Prudential Ins. Co., Nos. 95-CV-0829, 95-CV-0830, 1996 WL
637555, at *15 (N.D.N.Y. Oct. 21, 1996) (refusing to dismiss
intentional infliction of emotional distress claim where
plaintiffs alleged that defendant grabbed their buttocks and
directed lewd comments toward them); Persaud, 1996 WL 11197, at
*4 ("[T]he actions alleged, particularly the assaults, give
rise to a clear inference that they were intended to cause severe
emotional distress.") (emphasis added).*fn23 As Chapman concedes
the existence of a material fact as to whether he committed a
sexual battery, this is one of those "rare instances" where a
cause of action will lie.
Cases cited by Chapman bear little resemblance to the facts at
hand, for in none of those cases was there any indication that
the alleged assault was of a sexual nature. For instance, in
Jaffe, 635 N.Y.S.2d at 9, the court held that the plaintiff's
allegations, which included "`a hard slap on [plaintiff's]
backside,' during an outburst of rage," "f[ell] short of the
rigorous standard of outrageous conduct necessary to maintain a
cause of action for intentional infliction of emotional
distress." While the defendant was clearly angry, nothing in the
court's opinion suggests that his action was sexually-motivated.
Likewise, in a similar case not cited by Chapman, Ponticelli,
16 F. Supp.2d at 440, the Court held that plaintiff's allegations
did not rise to the level of extreme and outrageous conduct where
the only incident of touching she alleged — being pushed into a
filing cabinet — was not a sexual assault. See also Lucas, 54
F. Supp.2d at 151 (dismissing intentional infliction of emotional
distress claim where plaintiff alleged that defendant's hand
briefly touched his hand, shoulder, and back on a handful of
occasions, but did not assert that defendant "ever touched or
attempted to touch his private parts"); Castro v. Local 1199,
964 F. Supp. 719, 731, 732-33 (S.D.N.Y. 1997) (granting summary
judgment where the defendant was accused
of threatening and screaming at the plaintiff, but not physical —
let alone sexual — contact).
Accordingly, since the alleged harassment in the instant action
included a sexual battery, the Court cannot say that such conduct
did not, as a matter of law, constitute intentional infliction of
emotional distress. Therefore, "a determination as to whether
particular conduct is sufficiently outrageous, atrocious or
intolerable . . . must be left to jury." Collins, 600 N.Y.S.2d
C. Negligent Infliction of Emotional Distress
Under New York law, a plaintiff may recover for negligent
infliction of emotional distress under one of two theories: (1)
the "bystander theory" or (2) the "direct duty theory." United
States ex rel. Ben-Shlush v. St. Luke's-Roosevelt Hosp., No.
97 Civ. 3664, 2000 WL 269895, at *4 (S.D.N.Y. Mar. 10, 2000);
see also Mortise v. United States, 102 F.3d 693, 696 (2d Cir.
1996). Plaintiff clearly has no cause of action under the
"bystander theory," which requires that she have witnessed the
death or serious bodily injury of a member of her immediate
family. See Mortise, 102 F.3d at 693. Thus, the Court construes
plaintiff's claim to rest on the "direct duty theory," under
which she must show that she "suffer[ed] an emotional injury from
[Chapman's] breach of a duty which unreasonably endangered her
own physical safety," id. at 693, or caused her to fear for her
physical safety, see Johnson v. New York City Bd. of Educ.,
704 N.Y.S.2d 281, 2000 WL 277143, at *2 (N.Y.2d Dep't Mar. 13, 2000).
The duty alleged "must be specific to the plaintiff, and not some
amorphous, free-floating duty to society." Mortise, 102 F.3d at
As an initial matter, in order to recover for her emotional
injuries, plaintiff must demonstrate that she experienced
"contemporaneous or consequential physical harm." Bertuzzi v.
Chase Manhattan Bank, N.A., No. 98 Civ. 5968, 1999 WL 759997, at
*7 n. 3 (S.D.N.Y. Sept. 24, 1999); Iannotti v. City of
Amsterdam, 225 A.D.2d 990, 639 N.Y.S.2d 537, 538 (3d Dep't
1996). Although general allegations of sexual harassment are
insufficient to state a claim for negligent infliction of
emotional distress, a cause of action may lie where the conduct
at issue included "sexual assault or battery, or threat thereof."
Gerson v. Giorgio Sant'Angelo Collectibles, Inc., 176 Misc.2d 388,
671 N.Y.S.2d 958, 961 (Sup.Ct. 1998); see also Stewart v.
Florence Nightingale Health Ctr., No. 97 Civ. 6977, 1999 WL
179373, at *13 n. 6 (S.D.N.Y. Mar. 31, 1999). Plaintiff has
raised a genuine issue as to whether her assailant placed her in
reasonable apprehension of physical harm. see supra at 518-19.
Hence, this prerequisite has been satisfied.
Nevertheless, plaintiff's negligent infliction of emotional
distress claim must fail for two reasons. First, plaintiff has
not alleged any special duty owed to her by Chapman "other than
the duty to obey the law." Kojak v. Jenkins, No. 98 Civ. 4412,
1999 WL 244098, at *9 (S.D.N.Y. Apr. 26, 1999) (dismissing claim
for negligent infliction of emotional distress where defendant,
an attorney at the law firm at which plaintiff was employed as a
word processor, invited plaintiff to engage in sexual acts and
sent her sexually explicit letters); see also Mortise,
102 F.3d 693 ("While the [defendants] may have had a generalized duty to
prevent unreasonable risks of harm to passers-by, this duty was
not specific to the [plaintiffs]."); Drankwater v. Miller,
830 F. Supp. 188, 191 n. 5 (S.D.N.Y. 1993) (dismissing claim sua
sponte where plaintiff's employer's CEO and majority shareholder
allegedly made comments that constituted sexual harassment);
Cucchi v. New York City Off-Track Betting Corp., 818 F. Supp. 647,
656 (S.D.N.Y. 1993) (finding no special relationship because
plaintiff's employer had no obligation to treat her differently
than all other employees). Second, because the actions alleged
here were "intentional and deliberate and allegedly in their
offensive," they are "outside the ambit of actionable
negligence." Jones v. Trane, 153 Misc.2d 822, 591 N.Y.S.2d 927,
929 (Sup.Ct. 1992); see also Prosser & Keeton, Prosser and
Keeton on the Law of Torts § 10, at 46 (5th ed. 1984) ("There
is, properly speaking, no such thing as a negligent assault.").
This Court is mindful that "New York Courts have rejected
uniformly such attempts to transmogrify intentional torts into
`negligence.'" Schmidt v. Bishop, 779 F. Supp. 321, 324-25
(S.D.N.Y. 1991) (dismissing negligence claim by plaintiff who
alleged that her priest sexually abused her); see also Wilson v.
Diocese of N.Y. of Episcopal Church, No. 96 Civ. 2400, 1998 WL
82921, at *6 (S.D.N.Y. Feb. 26, 1998) (citing cases). For these
reasons, plaintiff's negligent infliction of emotional distress
claim shall be dismissed.
D. Prima Facie Tort
Finally, plaintiff alleges that Chapman's conduct toward her
renders him liable for prima facie tort under New York law. The
elements of prima facie tort are: "(1) intentional infliction
of harm; (2) resulting in special damages; (3) without excuse or
justification; (4) by an act that would otherwise be lawful."
Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 571
(2d Cir. 1990) (citing Burns Jackson Miller Summit & Spitzer v.
Lindner, 59 N.Y.2d 314, 332, 451 N.E.2d 459, 467, 464 N.Y.S.2d 712,
720 (1983)). The Second Circuit has held that the
"touchstone" of such a claim is "disinterested malevolence,"
meaning that "the defendant's conduct was not only harmful, but
done with the sole intent to harm." Id. As a result, evidence
of motives other than disinterested malevolence, "such as profit,
self-interest, or business advantage" will defeat a claim of
prima facie tort. Marcella v. ARP Films, Inc., 778 F.2d 112,
119 (2d Cir. 1985).*fn24 Though Chapman does not address this
issue, plaintiff's Complaint makes no allegation that
"disinterested malevolence" was the sole motivating force behind
his actions. See Ross, 2 F. Supp.2d at 531; ESI, Inc. v.
Coastal Power Prod. Co., 995 F. Supp. 419, 435 (S.D.N.Y. 1998);
Burns Jackson, 59 N.Y.2d at 333, 464 N.Y.S.2d 712,
451 N.E.2d 459.
Moreover, plaintiff's Complaint is insufficient to state a
cause of action for prima facie tort insofar as it fails to
plead special damages. To establish such a claim, plaintiff's
special damages "must be alleged `fully and accurately . . . with
sufficient particularity as to identify and causally relate the
actual losses to the allegedly tortious acts.'" Montefusco v.
Nassau County, 39 F. Supp.2d 231, 239 (E.D.N.Y. 1999) (quoting
Broadway & 67th St. Corp. v. City of New York, 100 A.D.2d 478,
475 N.Y.S.2d 1, 6 (1st Dep't 1984)) (alteration in original);
see also ESI, 995 F. Supp. at 435 ("Pleading special damages
requires `a particularized statement of the reasonable,
identifiable and measurable' loss.") (quoting Gray v. Grove Mfg.
Co., 971 F. Supp. 78, 81 (E.D.N.Y. 1997)).
Plaintiff has not only failed to itemize her losses, see
Procter & Gamble Co. v. Quality King Distribs., Inc.,
974 F. Supp. 190, 198 (E.D.N.Y. 1997); Gray, 971 F. Supp. at 81, her
prayer for relief does
not even specify a "round sum," see PI, Inc. v. Ogle, No. 95
Civ. 1723, 1997 WL 37941, at *3 (S.D.N.Y. Jan. 30, 1997); see
also Matherson v. Marchello, 100 A.D.2d 233, 473 N.Y.S.2d 998,
1001 (2d Dep't 1984) (holding that even "`[r]ound figures' or a
general allegation of a dollar amount as special damages do not
suffice"). In fact, in response to Chapman's interrogatories,
plaintiff conceded that she "is not claiming special damages."
Pl. Resp. to Def. First. Interrogs. ¶ 9 (Chapman Mem., Exh. C).
Accordingly, because her Complaint does not state a cause of
action for prima facie tort, this claim too must be dismissed.
See Walther v. Maricopa Int'l Inv. Corp., No. 97 Civ. 4816,
1998 WL 689943, at *3 (S.D.N.Y. Sept. 30, 1998); Kurschus v.
PaineWebber, Inc., 16 F. Supp.2d 386, 395 (S.D.N.Y. 1998)
(Leisure, J.); Ross, 2 F. Supp.2d at 532.*fn25
For the foregoing reasons, defendant Metro-North's motion for
summary judgment is HEREBY GRANTED with respect to plaintiff's
Title VII, NYSHRL, and NYCHRL claims, and HEREBY DENIED with
respect to plaintiff's FELA claims. Defendant Chapman's motion
for summary judgment is HEREBY GRANTED with respect to
plaintiff's negligent infliction of emotional distress and prima
facie tort claims, and HEREBY DENIED with respect to plaintiff's
assault and intentional infliction of emotional distress claims.
The parties are ordered to appear before this Court at the United
States Courthouse, 500 Pearl Street, Courtroom 18B, New York, New
York, on Thursday, April 13, 2000, at 10:30 a.m. for a pre-trial