KSW Mechanical Services, Inc. v. Willis of New York, Inc.

Jun 2, 2009
Versions:63 A.D.3d 411
879 N.Y.S.2d 328

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered March 19, 2008, which granted defendants’ motion to dismiss the complaint for failure to state a cause of action to the extent of dismissing the causes of action for constructive discharge and intentional and negligent infliction of emotional distress and granted defendants’ motion for summary judgment to the extent of dismissing the causes of action for retaliation, hostile work environment and quid pro quo sexual harassment, unanimously modified, on the law, to deny defendants’ motion for summary judgment in its entirety, and otherwise affirmed, without costs.

Defendants failed to demonstrate good cause for the late filing of their motion for summary judgment (CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]).

The complaint fails to state a cause of action for constructive discharge since it contains no allegation that plaintiff resigned from her job (see Whidbee v Garzarelli Food Specialties, Inc., 223 F3d 62, 73 [2000]). It fails to state a cause of action for either intentional or negligent infliction of emotional distress because the conduct it alleges as to defendant Marcelino is not “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” (see Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983] [internal quotation marks omitted]).

Concur—Mazzarelli, J.P., Andrias, Friedman, Renwick and Freedman, JJ.