Davydov v YoussefiDavydov v Youssefi
Diana Rubin, Manhassett, NY, for respondent.
In an action to recover damages for defamation, intentional infliction of emotional distress, and conversion, the plaintiff appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), dated May 13, 2020. The order, insofar as appealed from, granted those branches of the defendant‘s motion which were pursuant to
Ordered that the order is affirmed insofar as appealed from, with costs.
On September 5, 2017, the plaintiff, a dentist, commenced this action against the defendant. In an amended complaint dated September 16, 2017, the plaintiff alleged three causes of action, sounding in defamation, intentional infliction of emotional distress, and conversion, respectively. In October 2018, the defendant interposed a verified answer to the amended complaint and asserted several counterclaims. The defendant subsequently moved pursuant to
In considering a motion pursuant to
“‘To state a cause of action alleging defamation, a plaintiff must allege that the defendant published a false statement, without privilege or authorization, to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se‘” (Gottlieb v Wynne, 159 AD3d 799, 800 [2018], quoting Rosner v Amazon.com, 132 AD3d 835, 836-837 [2015]; see Greenberg v Spitzer, 155 AD3d 27, 41 [2017]). A false statement constitutes defamation per se if it, inter alia, “tends to injure another in his or her trade, business, or profession” (Matter of Konig v CSC Holdings, LLC, 112 AD3d 934, 935 [2013] [internal quotation marks omitted]). Here, the amended complaint, as supplemented by the plaintiff‘s affidavit submitted in opposition to the defendant‘s motion, did not identify statements by the defendant tending to injure the plaintiff in his trade, business, or profession (see Arvanitakis v Lester, 145 AD3d 650, 652 [2016]; Rufeh v Schwartz, 50 AD3d 1002, 1005 [2008]; cf. Gatz v Otis Ford, 262 AD2d 280, 281 [1999]). While the plaintiff asserted in his affidavit that the defendant had called him a “fraud” and that he “operate[d] as a fake,” there are no allegations that these statements were specifically directed at the plaintiff in his professional capacity as a dentist (see Rufeh v Schwartz, 50 AD3d at 1005). The assertion in the plaintiff‘s affidavit that the defendant accused him of conducting unnecessary treatments in his dental practice was similarly not defamatory per se, as the statements reflected a difference of opinion in the efficacy of the defendant‘s treatment recommendations rather than statements tending to injure the plaintiff in his trade, business, or profession. Since the plaintiff did not sufficiently allege defamation per se or that the statements caused special harm, the Supreme Court properly granted that branch of the defendant‘s motion which was to dismiss the first cause of action, alleging defamation.
The Supreme Court also properly granted that branch of the defendant‘s motion which was to dismiss the second cause of action, to recover damages for intentional infliction of emotional distress. “The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress” (Klein v Metropolitan Child Servs., Inc., 100 AD3d 708, 710 [2012]). “In order to state a cause of action to recover damages for intentional infliction of emotional distress, the pleading must allege ‘conduct [that] 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 community‘” (Ratto v Oliva, 195 AD3d 870, 873 [2021], quoting Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983]). Mere insults, threats, annoyances, or indignities are insufficient (see Ratto v Oliva, 195 AD3d at 873; Ajie Chen v Deliso, 169 AD3d 761, 762 [2019]). Here, accepting as true the allegations in the amended complaint that the defendant shouted verbal threats and hostile and demeaning insults at the plaintiff while the plaintiff was in the process of moving his office to a new location, the alleged conduct was not “‘so outrageous in character, and so extreme in degree’ as to qualify as intentional infliction of emotional distress” (Klein v Metropolitan Child Servs., Inc., 100 AD3d at 711, quoting Murphy v American Home Prods. Corp., 58 NY2d at 303).
Contrary to the plaintiff‘s contention, the Supreme Court providently exercised its discretion in denying his cross motion for leave to amend the amended complaint to add a cause of action to recover damages for negligent infliction of emotional distress. “Leave to amend a pleading shall be freely given absent prejudice or surprise resulting directly from the delay unless the proposed amendment is palpably insufficient or patently devoid of merit” (Tavor v Lane Towers Owners, Inc., 197 AD3d 584, 586 [2021] [internal quotation marks omitted]). Here, the proposed amendment was palpably insufficient as it was premised on allegations of intentional conduct “which cannot form the basis of a cause of action sounding in negligence” (Trayvilla v Japan Airlines, 178 AD3d 746, 747 [2019]; see Gruber v Donaldsons, Inc., 201 AD3d 887 [2022]).
The defendant‘s remaining contention is without merit. Dillon, J.P., Duffy, Maltese and Genovesi, JJ., concur.