Commercial Litigation and Arbitration

New York Bars Legal Malpractice-Based Claim for Negligent Infliction of Emotional Distress unless Defendant Unreasonably Threatened Plaintiff’s Physical Safety

Morson v. Kreindler & Kreindler, 2011 U.S. Dist. LEXIS 112310 (E.D.N.Y. Sept. 28, 2011):

Two of plaintiff's claims, Count V: negligent infliction of emotional distress ("NEID"), and Count VI: intentional infliction of emotional distress ("IIED"), allege injuries that are not purely economic in nature. However, New York does not allow claims for negligent infliction of emotional distress under a legal malpractice claim, unless the defendant's conduct "unreasonably threatened plaintiff's physical safety in some way." Schonberger v. Serchuk, 742 F. Supp. 108, 120 (S.D.N.Y. 1990)(citing Green v. Leibowitz, 118 A.D.2d 756, 757-78 (2d Dep't 1986)). Such facts are not present in this case and the NEID claim is therefore dismissed. Further, regarding the IIED claim, there is no evidence in the record that would allow a juror to conclude that defendant's "conduct 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'." Howell v. New York Post Co., 81 N.Y.2d 115, 122, 612 N.E.2d 699 (1993)(quoting Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303, 448 N.E.2d 86 (1983)). Plaintiff's IIED claim is therefore likewise dismissed.

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