66 A.D.2d 504 | N.Y. App. Div. | 1979
OPINION OF THE COURT
Plaintiffs appeal from an order of the Supreme Court which granted defendant Federal Insurance Company’s (Federal) motion for summary judgment in an action brought to recover damages for intentional or reckless infliction of extreme emotional distress. The action is based upon comments made during the trial of a previous action brought by H & N Affiliates, Inc. (H & N) against the Hunkin-Conkey Construction Company and Federal. Plaintiff, R. Edward Nestlerode, president and owner of H & N, was its chief witness at the trial. Mr. Nestlerode alleges that he had suffered a serious accident prior to the trial in which he sustained a broken leg and multiple internal injuries, and was only partially recovered by the date of this incident. At the time the alleged tortious remarks were made, plaintiff was returning to his
Plaintiffs contend (1) that this intentional infliction of emotional distress is actionable per se, and (2) that a violation of the Code of Professional Responsibility and the ethical and disciplinary rules of the legal profession constitutes outrageous conduct, which becomes actionable because of the special relationship between a lawyer and the opposing party.
Viewing the allegations of the complaint and the assertions in their support in the perspective most favorable to the plaintiffs and accepting their version of the facts as true, we find that no cause of action is stated for intentional infliction of severe emotional distress (Fischer v Maloney, 43 NY2d 553). "An action may lie for intentional infliction of severe emotional distress 'for conduct exceeding all bounds usually tolerated by decent society’ (Prosser, Torts [4th ed], § 12, p 56)” (Fischer v Maloney, supra, p 557). The rule is stated in the Restatement, Torts 2d, as follows: "One who by extreme and outrageous conduct intentionally or recklessly
Plaintiffs’ version of Pace’s statements clearly indicates that a violation of canon 7 of the Code of Professional Responsibility occurred (EC7-18; DR7-104[A]). The words, if uttered, were unfortunate and better left unsaid. However, a breach of a disciplinary rule does not necessarily constitute "extreme and outrageous conduct”. While a breach cannot be looked upon with favor, it cannot, standing alone, be reflexively characterized as "utterly intolerable in a civilized community”. Any communication between the two about the lawsuit would have been in breach of the rule. Even if Pace occupied a special relationship to Nestlerode, or was aware of some peculiar susceptibility of Nestlerode to emotional distress by reason of his physical or mental condition, the conduct must still be outrageous to be actionable (Restatement, Torts 2d, §46, Comments e, f). It must consist of more than mere insults, indignities, and annoyances and must be so shocking and outrageous as to exceed all reasonable bounds of decency.
There is no allegation or evidence that the defendant conducted a planned program of harassment or threats; no evidence of the presence of vindictiveness, taunting or derision (cf. 2 NY PJI 617-619; Long v Beneficial Fin. Co. of N. Y., 39 AD2d 11; Halio v Lurie, 15 AD2d 62; Callarama v Associates Discount Corp. of Del., 69 Misc 2d 287; Flamm v Van Nierop, 56 Misc 2d 1059; Ruiz v Bertolotti, 37 Misc 2d 1067, affd 20 AD2d 628; see, also, Blair v Union Free School Dist. No. 6, Hauppauge, 67 Misc 2d 248.) "Whatever may be alleged as to motivation * * * [these courtroom conversations] in the circumstances disclosed in this record [do] not constitute conduct within the rule described by Dean Prosser and the Restatement” (Fischer v Maloney, 43 NY2d 553, 557, supra). We hold that plaintiffs simply do not state facts sufficiently shocking or outrageous as to set forth a cause of action for intentional infliction of mental distress (Clark v New York Tel. Co., 52 AD2d 1030, affd 41 NY2d 1069).
Simons, J. P., Callahan, Doerr and Witmer, JJ., concur.
Order unanimously affirmed, without costs.