ANONYMOUS v. ANONYMOUS (2024)

Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about May 10, 2023, which granted defendants’ motions to dismiss the amended complaint, unanimously affirmed, without costs.

By failing to raise any argument regarding the nonplayer defendants, plaintiff abandoned all her claims except those for negligent infliction of emotional distress and aiding and abetting retaliation (see Weis v. Rheem, Bell & Freeman, LLP, 217 A.D.3d 538, 539, 191 N.Y.S.3d 47 [1st Dept. 2023]).

Plaintiff failed to show she was an intended third-party beneficiary of the parties’ collective bargaining agreement (CBA), as others could enforce its provisions, and the language did not support an intention to provide her with any rights (see Dormitory Auth. of the State of N.Y. v. Samson Constr. Co., 30 N.Y.3d 704, 710, 70 N.Y.S.3d 893, 94 N.E.3d 456 [2018]).  For that reason, plaintiff failed to identify a source of duty from defendants that would support her negligent infliction claim (Sacino v. Warwick Val. Cent. Sch. Dist., 138 A.D.3d 717, 719, 29 N.Y.S.3d 57 [2d Dept. 2016]).  That claim was also properly dismissed because no claim for emotional harm will lie for breach of a duty based on contract (Wehringer v. Standard Sec. Life Ins. Co. of N.Y., 57 N.Y.2d 757, 759, 454 N.Y.S.2d 984, 440 N.E.2d 1331 [1982]).

Furthermore, since plaintiff was not a beneficiary of the CBA, she could not sue for a breach of its anti-retaliation provisions.  Moreover, even if she could, she failed to identify any conduct of defendants to “aid and abet” the breach, other than inaction, which is insufficient as a matter of law (Land v. Forgione, 177 A.D.3d 862, 864, 114 N.Y.S.3d 464 [2d Dept. 2019]).

We have considered plaintiff's remaining arguments and find them unavailing.