Rohrlich v. Consolidated Bus Transit, Inc.

Feb 22, 2005
Versions:15 A.D.3d 561
789 N.Y.S.2d 689
2005 N.Y. App. Div. LEXIS 1872

In an action to recover damages for unlawful discriminatory practice, intentional infliction of emotional distress, and defamation, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated March 17, 2004, which granted the defendants’ motion pursuant to CPLR 3211 (a) (7) to dismiss the causes of action to recover damages for intentional infliction of emotional distress and defamation.

Ordered that the order is affirmed, with costs.

The Supreme Court properly dismissed the cause of action to recover damages for intentional infliction of emotional distress. Accepting the allegations of the complaint as true, and affording the plaintiff the benefit of every favorable inference, the complained-of conduct did not “so transcend [ ] the bounds of decency as to be regarded as atrocious and intolerable in a civilized society” (Freihofer v Hearst Corp., 65 NY2d 135, 143 [1985]; see Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983]; Leibowitz v Bank Leumi Trust Co. of N.Y., 152 AD2d 169, 181-182 [1989]).

The Supreme Court correctly dismissed the cause of action to recover damages for defamation. The alleged defamatory statement was subject to a qualified privilege. The plaintiff‘s conclusory allegation of actual malice was insufficient to defeat the motion to dismiss (see Shapiro v Health Ins. Plan of Greater N.Y., 7 NY2d 56, 64 [1959]; Serratore v American Port Servs., 293 AD2d 464, 465 [2002]; Hollander v Cayton, 145 AD2d 605, 606 [1988]). Luciano, J.P., Crane, Fisher and Lifson, JJ., concur.