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Battistello v. East 51ST Street Development Company

May 12, 2009

JENNIFER BATTISTELLO, EILEEN HAYES, MARGERY JANE BONIA, KATHLEEN TOMPKINS, INDIVIDUALLY, LACEY TOMPKINS, A MINOR CHILD BY HER MOTHER AND NATURAL GUARDIAN, KATHLEEN TOMPKINS, AND SABRINA TOMPKINS, A MINOR CHILD BY HER MOTHER AND NATURAL GUARDIAN, KATHLEEN TOMPKINS, PLAINTIFFS,
v.
EAST 51ST STREET DEVELOPMENT COMPANY, LLC, KENNELLY DEVELOPMENT LLC, JAMES P. KENNELLY, INDIVIDUALLY, RELIANCE CONSTRUCTION LTD. D/B/A RCG GROUP AND RELIANCE CONSTRUCTION GROUP, JOY CONTRACTORS, INC., RAPETTI RIGGING SERVICES, INC., NEW YORK CRANE & EQUIPMENT CORPORATION, STROH ENGINEERING SERVICES, P.C., AND THE CITY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Karen Smith, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

This motion by defendant New York Crane & Equipment Corporation (hereafter "NY Crane") for an order pursuant to CPLR § 3211(a)(7) dismissing those portions of plaintiff's complaint relating to emotional injuries and nuisance, is granted in part and denied in part, as discussed more fully below. As the cross-motions by defendants Reliance Construction Ltd. d/b/a RCG Group s/h/a Reliance Construction Group and RCG Group, Inc. (hereafter "Reliance") and East 51st Street Development Company, LLC (hereafter "East 51st") seek the same relief on the same grounds as NY Crane's motion, they are also granted in part and denied in part, as provided more fully below.

This action arises from an accident that occurred on March 15, 2008, when a crane involved in construction at 303 East 51st Street, New York, New York, collapsed, portions of which came into contact with nearby buildings. The plaintiffs were each tenants of the building located at 300 East 51st Street, New York, New York,*fn1 which suffered structural damage as a result of the crane collapse.

NY Crane, who leased the subject crane to Joy Contractors, Inc., now moves, pre-answer, to dismiss those portions of plaintiffs' complaint which purport to state a cause of action for emotional injuries and for nuisance, pursuant to CPLR § 3211(a)(7), for failure to state a cause of action. NY Crane contends that plaintiffs cannot recover for their alleged "severe emotional distress" because 1) while there is a bare allegation that plaintiffs were in the "zone of danger", none of the plaintiffs observed a family member's death or serious injury, and 2) negligent destruction of property cannot support a claim for emotional injuries, and plaintiffs have failed to allege any physical injuries. NY Crane also argues that plaintiffs cannot recover for emotional injuries, in part, because any such injuries are alleged to be a consequential injury, not an injury caused by a direct duty owed plaintiffs by defendants. In addition, NY Crane argues that plaintiffs have not sufficiently pled a cause of action for nuisance, where they have merely listed it as form of damage suffered.

Reliance cross-moves, also seeking an order dismissing those portions of plaintiffs' complaint which purport to state a cause of action for emotional injuries and for nuisance, pursuant to CPLR § 3211(a)(7). According to Reliance, plaintiffs have failed to make any allegation that Reliance's actions specifically endangered them physically or caused them to fear for their own safety. Nor have plaintiffs, according to Reliance, alleged any intentional conduct upon which a claim for intentional infliction of emotional distress could lie. While plaintiff Hayes asserts in the complaint that she was within the "zone of danger," as NY Crane points out, there are no allegations that she witnessed the death or serious injury of a family member, thereby precluding recovery under a "zone of danger" theory. Also like NY Crane, Reliance contends that none of the plaintiffs can recover emotional damages based on property damage alone, and none state a cause of action for nuisance.

East 51st also cross-moves for an order dismissing those portions of plaintiffs' complaint which purport to state a cause of action for emotional injuries and for nuisance, pursuant to CPLR § 3211(a)(7). East 51st adopts the arguments set forth by NY Crane and Reliance and argues that in order to recover, each plaintiff must allege that she was on the premises at the time of the crane collapse and either 1) suffered a consequential physical manifestation of emotional distress as a result, or 2) witnessed the death or serious injury of a family member. Plaintiffs here, according to East 51st, have not so alleged.

Plaintiffs oppose the motion and two cross-motions. As an initial matter, plaintiffs clarify that the use of the word "nuisance" in the complaint was not intended to state a cause of action, but rather was included merely as a descriptive word to amplify the experience of plaintiffs after the collapse occurred. As plaintiffs have not pled a cause of action for nuisance, and there is no separate set of damages described as "nuisance" nor any other legally operative purpose for the language to be included in the complaint, it must be stricken from the complaint.

As to the remainder of defendants' arguments, plaintiff s argue they have sufficiently pled compensable non-economic damages. In opposition to the motion and cross-motions, plaintiffs also submit an affidavit by Kathleen Tompkins, and the testimony of Margery Jane Bonia taken by defendant City of New York pursuant to General Municipal Law § 50-h for the Court's consideration. Plaintiffs contend that they need not allege physical injury or physical manifestation of their emotional injuries in order to properly plead a cause of action, nor, they argue, must they allege that plaintiffs witnessed the death or serious physical injury of a family member, as defendants contend. Rather, according to plaintiffs, they may recover for severe emotional injuries that flow from defendants' breach, including but not limited to fear, panic and other attendant emotional injury caused by being on the premises (or in the "zone of danger") at the time of the collapse, and also for emotional distress directly caused by the aftermath of the crane collapse.

In deciding a motion brought pursuant to CPLR § 3211(a)(7) for failure to state a cause of action, the complaint should be liberally construed and the facts alleged in the complaint and any submissions in opposition to the dismissal motion accepted as true, according plaintiffs the benefit of every possible favorable inference. (511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]). "The motion must be denied if from the pleadings' four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law'." (Id.). Affidavits submitted in support of a motion to dismiss are considered "only for the limited purpose of determining whether the plaintiff has stated a claim, not whether he has one and, in the absence of proof that an alleged material fact is untrue or beyond significant dispute," the Court must not grant the motion. (Wall Street Associates v Brodsky, et al., 257 AD2d 526-7 [1st Dept 1999]).

It is well-established that one who sustains physical injuries as a result of a tortfeasor's negligence may recover for attendant pain and suffering, both physical and mental. Actions predicated on emotional injuries alone were long treated with suspicion in this State, and no cause of action for "negligent infliction of emotional distress" would lie. However, more than 50 years ago, in affirming a jury's award for defendant doctors' negligence leading to "cancerphobia", the Court of Appeals reversed this trend, declaring, "Freedom from mental disturbance is now a protected interest in this State." (Ferrara v Galluchio, 5 NY2d 16, 21 [1958]). The Court examined the history of the State's suspicion of claims for emotional distress, and determined that "[t]he problem is one of adequate proof, and it is not necessary to deny a remedy in all cases because some claims may be false." (Id.).

Three years later, in Battalla v State of New York (10 NY2d 237 [1961]), the Court of Appeals applied the principles in Ferrara where an infant plaintiff at a mountain ski center was placed into a chair lift by a State employee, who negligently failed to secure and properly lock the belt on the chair lift. On descent, the infant plaintiff became frightened and hysterical upon descent, "with consequential injuries." (Id. at 238).*fn2 The Appellate Division, First Department, dismissed the case on the basis of Mitchell v Rochester Ry. Co., (151 NY 107 [1896]), which held that there could be no recovery for injuries caused by "fright negligently induced," whether such injuries are physical or emotional. (Id.). The Battalla Court overturned Mitchell, stating that " [t]he best statement of the rule is that a wrong-doer is responsible for the natural and proximate consequences of his misconduct; and what are such consequences must generally be left for the determination of the jury.'" (10 NY2d at 240).

The Court further reaffirmed the viability of claims for emotional injuries in Johnson v State of New York (37 NY2d 378 [1975]). There, plaintiff was falsely advised by a State hospital that her mother had died. After plaintiff and her aunt saw the corpse at the funeral, they determined it was not plaintiff's mother. Plaintiff subsequently brought suit seeking, inter alia, to recover for emotional distress. The Court found that liability hinged on the hospital's duty to properly advise the next of kin when a patient dies. "In the light of the Battalla and Ferrara cases, and the reasoning upon which they were based," the Court wrote, "recovery for emotional harm to one subjected directly to the tortious act may not be disallowed so long as the evidence is sufficient to show causation and substantiality of the harm suffered, together with a guarantee of genuineness' to which the court referred in the Ferrara case." (37 NY2d at 383-4).

In 1983, the Court of Appeals recognized that three distinct lines of cases regarding recovery of damages for emotional distress had developed. (Kennedy v McKesson Co., et al., 58 NY2d 500). First, the Court stated, "[w]hen there is a duty owed by defendant to plaintiff, breach of that duty resulting directly in emotional harm is compensable even though no physical injury occurred." (Id. at 504; citing, Ferrara v Galluchio, 5 NY2d 16 [1958] [physical injury alleged]; Battalla v State of New York, 10 NY2d 237 [1961] [no physical injury]; ...


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