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Capogrosso v. Bank of New York

December 13, 2007

ELEANOR CAPOGROSSO, PLAINTIFF-APPELLANT,
v.
THE BANK OF NEW YORK, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, L-2965-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 13, 2007

Before Judges Weissbard and Baxter.

Plaintiff Eleanor Capogrosso appeals an order of summary judgment dismissing her complaint against defendant the Bank of New York (BNY). We affirm.

On March 28, 2001, plaintiff, a New York attorney, applied for a loan with defendant at its branch in Yonkers, New York, on behalf of her professional corporation, Eleanor Capogrosso, P.C. (the P.C.). On January 15, 2002, plaintiff initiated suit against defendant in the Civil Court of the City of New York, alleging that she was treated in a "grossly negligent" manner by defendant's employees in connection with the loan application.

Her complaint asserted causes of action for negligence and intentional infliction of emotional distress. On July 19, 2002, in response to defendant's motion to dismiss, the New York judge, the Honorable Lucy Billings, rendered a written opinion.

In her decision, Judge Billings wrote, in part:

Plaintiff sues for damages caused by defendant's gross negligence and intentional infliction of emotional distress. Plaintiff alleges defendant was grossly negligent in (a) sending statements regarding a loan after it was repaid and she requested defendant to stop sending them and (b) failing to respond to her requests for information regarding defendant's denial of a subsequent loan application. She alleges defendant intentionally caused her emotional distress in defending the small claims action that she initiated for the gross negligence claims, resulting in her loss of business. Defendant moves to dismiss the complaint on the grounds that plaintiff's claims fail to state a cause of action. C.P.L.R. § 3211(a)(7). Upon oral argument April 4, 2002, for the reasons explained below, the court grants defendant's motion and dismisses the action.

I. NEGLIGENCE

A. Factual Allegations

The following facts are alleged in plaintiff's complaint and affidavit or are alleged by defendant, supported by documentary evidence, and undisputed by plaintiff.

In 1997, plaintiff's corporation, Eleanor Capogrosso, P.C., received a loan from defendant, which was fully repaid as of June 2000. Defendant continued to send monthly statements to the corporation showing a zero balance due on the loan until plaintiff requested defendant to stop in July or early August 2001. Defendant then sent a final statement and nothing further.

On March 28, 2001, the corporation applied for a second loan. Two days later, defendant informed the corporation and plaintiff that defendant denied the application due to the corporation's unacceptable credit rating. Plaintiff requested defendant to provide her further information regarding a judgment against the corporation that appeared on its credit report. Defendant provided plaintiff that information in a letter dated July 19, 2001.

B. Legal Claim

Plaintiff contends that the mailing of statements showing a zero balance on a loan for a year after the loan was repaid and the delay in responding to the request for information regarding her credit rating were grossly negligent and caused her injury. Although plaintiff limits her claim to gross negligence, neither party cites any statutory or contractual provision that bars plaintiff's recovery for ordinary negligence. E.g., Rabushka v. Marks, 229 A.D.2d 899, 900 (3d Dep't 1996) (statutory); Parra v. Ardmore Mgt. Co., 258 A.D.2d 267, 269 (1st Dep't 1999) (contractual); Hanover Ins. Co. v. D & W Cent. Sta. Alarm Co., 164 A.D.2d 112, 115 (1st Dep't 1990) (contractual). Even if plaintiff claimed only ordinary negligence, however, she fails to establish that defendant owed her any duty to stop sending her statements at a particular point or, after promptly notifying her of a loan denial, to respond to requests for further information as to why her corporation's credit was impaired. Darby v. Compaqnie Nat'l. Air France, 96 N.Y.2d 343, 347 (2001); Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402 (1985).

Absent defendant's duty to plaintiff, she cannot establish that defendant acted negligently, much less that defendant recklessly disregarded its duty, to establish gross negligence. Colnaqhi, U.S.A. v. Jewelers Prot. Servs., 81 N.Y.2d 821, 823-24 (1993); SCP (Bermuda) v. Bermudatel Ltd., 224 A.D.2d 214, 216 (1st Dep't 1996). Therefore the court grants defendant's motion to dismiss plaintiff's first cause of action insofar as it alleges either gross negligence or ordinary negligence.

II. INFLICTION OF EMOTIONAL DISTRESS

A. Factual Allegations

Plaintiff's complaint and affidavit further allege that when she brought a small claims action for the gross negligence claims concerning the loans, defendant's tactics caused her emotional distress. Plaintiff alleges that defendant refused arbitration and insisted on a trial, threatening repeated adjournments and waiting in court late into the night before the court would reach the action. Plaintiff then did not appear on the trial date, resulting in the action's dismissal. She nonetheless claims that the emotional distress she suffered from the threatened defense tactics caused her to lose business.

B. Legal Claim

These allegations, even liberally construed, do not state a cause of action either for intentional or reckless infliction of emotional distress or for negligent infliction of emotional distress. A claim for intentional or reckless infliction of emotional distress requires conduct "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." Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303 (1983). See Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143 (1985); Callas v. Eisenberg, 192 A.D.2d 349, 350 (1st Dep't 1993). The cause of action contemplates "a deliberate and malicious campaign of harassment or intimidation," Vasarhelyi v. New School for Social Research, 230 A.D.2d 658, 661 (1st Dep't 1996) (citations omitted), which caused plaintiff severe emotional distress. Fischer v. Maloney, 43 N.Y.2d 553, 557 (1985). A claim for negligent infliction of emotional distress requires conduct that "created an unreasonable risk of bodily harm" to plaintiff. Bovsun v. Sanperi, 61 N.Y.2d 219, 223 (1984).

Plaintiff's stress, anxiety, or outrage, allegedly suffered as a result of defendant's insistence on the right to a trial of plaintiff's claim, whatever inconvenience that course of action caused, does not meet the standard for either cause of action. Defendant's conduct, even when viewed in the light most favorable to plaintiff, may not reasonably be construed as so extreme or outrageous as to exceed "all bounds usually tolerated by decent society." Fischer v. Maloney, 43 N.Y.2d at 557 (citation omitted). She may not recover for "threats, annoyances or petty oppressions or other trivial incidents which must necessarily be expected and are incidental to modern life no matter how upsetting" and no matter if that conduct violated applicable statutes or regulations. Rothenberg v. Lampert, 160 A.D.2d 986, 987 (2d Dep't 1990) (citation omitted).

Moreover, the distress plaintiff alleges does not rise to the requisite severity. She offers no evidence of psychological or psychiatric treatment. As for a claim of negligent infliction of emotional distress, nowhere does she indicate that her life or health was unreasonably endangered by the protraction of the small claims action or that she reasonably feared for her safety. Bovsun v. Sanperi, 61 N.Y.2d at 229; Lancellotti v. Howard, 155 A.D.2d 588, 589-90 (2d Dep't 1989). While physical injury is no longer a necessary element, a cause of action for negligent infliction of emotional distress still must be premised on breach of a duty to plaintiff that "unreasonably endangers" her physical safety. De Rosa v. Stanley B. Michelman, P.C., 184 A.D.2d 490, 491 (2d Dep't 1992) (citations omitted). See Kennedy v. McKesson Co., 58 N.Y.2d 500, 506-07 (1983).

In sum, plaintiff's allegations satisfy none of the elements for infliction of emotional distress. Therefore the court grants defendant's motion to dismiss plaintiff's second cause of action insofar as it alleges either intentional or reckless infliction of emotional distress or negligent infliction of emotional distress.

III. CONCLUSION

Because plaintiff's allegations fall short of any claim for negligence or infliction of emotional distress, the court dismisses her complaint for failure to state a claim. C.P.L.R. ยง 3211(a)(7). This decision constitutes the ...


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