OFFOR v. New York State Department of Health, Defendant. (2019)

Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered June 12, 2018, which, insofar as appealed from as limited by the briefs, granted defendants-respondents' motion to dismiss the complaint as against them, unanimously affirmed, without costs.

The majority of the alleged defamatory statements, including the National Practitioner Data Bank (NPDB) report, were made outside the one-year statute of limitations (see CPLR 215[3];  Smulyan v. New York Liquidation Bur., 158 A.D.3d 456, 457, 71 N.Y.S.3d 412 [1st Dept. 2018] ).  We reject plaintiff's argument, based on a 20–year–old, unreported Tennessee case applying Tennessee law (Swafford v. Memphis Individual Practice Assn., 1998 WL 281935, 1998 Tenn App LEXIS 361 [Ct. App. June 2, 1998] ), that the NPDB website is not subject to the single publication rule (see Firth v. State of New York, 98 N.Y.2d 365, 747 N.Y.S.2d 69, 775 N.E.2d 463 [2002];  Rare 1 Corp. v. Moshe Zwiebel Diamond Corp., 13 Misc.3d 279, 282, 822 N.Y.S.2d 375 [Sup. Ct. N.Y. County 2006] ).

The more recent statements are not actionable because plaintiff failed to set forth the “exact words” complained of (see Gardner v. Alexander Rent–A–Car, 28 A.D.2d 667, 667, 280 N.Y.S.2d 595 [1st Dept. 1967] ) and the “time, place and manner of the purported defamation” (see Buxbaum v. Castro, 104 A.D.3d 895, 895, 960 N.Y.S.2d 919 [2d Dept. 2013], appeal dismissed 21 N.Y.3d 1061, 974 N.Y.S.2d 30, 996 N.E.2d 911 [2013];  Murphy v. City of New York, 59 A.D.3d 301, 874 N.Y.S.2d 407 [1st Dept. 2009];  Manas v. VMS Assoc., LLC, 53 A.D.3d 451, 454–455, 863 N.Y.S.2d 4 [1st Dept. 2008];  CPLR 3016[a] ).

The intentional infliction of emotional distress claim is time-barred insofar as it is directed toward conduct that occurred before March 13, 2016—the vast majority of the conduct alleged (see CPLR 215[3];  Bridgers v. Wagner, 80 A.D.3d 528, 915 N.Y.S.2d 265 [1st Dept. 2011], lv denied 17 N.Y.3d 717, 935 N.Y.S.2d 287, 958 N.E.2d 1202 [2011] ).  The only conduct that even arguably occurred after that date does not meet the threshold for outrageousness (see e.g. Schottenstein v. Silverman, 128 A.D.3d 591, 10 N.Y.S.3d 63 [1st Dept. 2015];  Lewittes v. Blume, 18 A.D.3d 261, 261, 795 N.Y.S.2d 13 [1st Dept. 2005];  Krawtchuk v. Banco Do Brasil, 183 A.D.2d 484, 583 N.Y.S.2d 403 [1st Dept. 1992] ).

The allegations underlying the negligent infliction of emotional distress claim all involve intentional, not negligent, conduct (see James v. Flynn, 132 A.D.3d 1214, 1216, 19 N.Y.S.3d 618 [3d Dept. 2015];  Santana v. Leith, 117 A.D.3d 711, 712, 985 N.Y.S.2d 147 [2d Dept. 2014] ).  In addition, plaintiff failed to allege the requisite “guarantee of genuineness” (see Ornstein v. New York City Health & Hosps. Corp., 10 N.Y.3d 1, 6, 852 N.Y.S.2d 1, 881 N.E.2d 1187 [2008] [internal quotation marks omitted];  Taggart v. Costabile, 131 A.D.3d 243, 253, 14 N.Y.S.3d 388 [2d Dept. 2015] ).  Nor did she allege that defendants owed her any duty separate from their general obligations as an employer (see Hernandez v. Weill Cornell Med. Coll., 48 Misc.3d 1210(A), 2015 N.Y. Slip Op 51022(U), 2015 WL 4173697, *2 [Sup. Ct., Bronx County 2015];  People v. Conlin, 2013 N.Y. Slip Op 32895(U), 2013 WL 2143767, *5, *7 [Sup. Ct., N.Y. County 2013];  Day v. City of New York, 2015 WL 10530081, *19, 2015 U.S. Dist LEXIS 161206, *57 [S.D N.Y. Nov. 30, 2015];  Alexander v. Westbury Union Free Sch. Dist., 829 F.Supp.2d 89, 112 [E.D N.Y.2011] ).

Absent any underlying substantive causes of action to which they may attach, plaintiff's requests for injunctive relief and punitive damages must be dismissed (see Rocanova v. Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603, 616–617, 612 N.Y.S.2d 339, 634 N.E.2d 940 [1994];  Weinreb v. 37 Apts. Corp., 97 A.D.3d 54, 58–59, 943 N.Y.S.2d 519 [1st Dept. 2012] ).

Under the circumstances, vacatur of the order is not warranted, notwithstanding that it appears to have been entered after the case was administratively reassigned to a different Justice.  The motion was fully briefed before the original judge prior to reassignment.