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Capellan v. Marsh

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 16, 2010

MARISOL CAPELLAN, ET AL., PLAINTIFFS-APPELLANTS,
v.
ALAN DOUGLAS MARSH, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered January 15, 2009, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered March 24, 2009, which denied plaintiffs' motion to reargue the previous order, unanimously dismissed, without costs, as taken from a non-appealable paper.

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 Official Reports.

Tom, J.P., Sweeny, Catterson, Moskowitz, DeGrasse, JJ.

107320/08

The complaint failed to state a cause of action for negligent infliction of emotional distress because the allegations fell far short of the atrocious conduct required to sustain such a claim, and it never expressed danger to -- or fear for -- Marisol Capellan's physical safety (see Sheila C. v Povich, 11 AD3d 120, 130-131 [2004]). The allegations of sexual harassment did not fit under any cognizable legal theory. Contrary to plaintiffs' assertion, no provision of the Executive Law -- in particular, § 296 -- applies to the situation set forth in the complaint.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100316

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