XENIAS v. ROOSEVELT HOSPITAL (2020)

Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered August 10, 2018, dismissing the complaint, and bringing up for review an order (same court and Justice), entered June 6, 2018, which granted defendants' motion to dismiss the complaint, and order (same court and Justice), entered December 13, 2018, which, upon granting reargument, adhered to its prior determination, unanimously affirmed, without costs.  Appeal from June 6, 2018 order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff alleges that, after her father's death at Mount Sinai West Hospital, defendants engaged in conduct that constituted negligent infliction of emotional distress (see generally Sheila C. v. Povich, 11 A.D.3d 120, 130, 781 N.Y.S.2d 342 [1st Dept. 2004] ).  The claim was properly dismissed since the allegations do not set forth the breach of a duty of care owed to plaintiff (see DeCintio v. Lawrence Hosp., 299 A.D.2d 165, 166, 753 N.Y.S.2d 26 [1st Dept. 2002], lv denied 100 N.Y.2d 549, 762 N.Y.S.2d 871, 793 N.E.2d 408 [2003];  Yates v. Genesee County Hospice Found., 278 A.D.2d 928, 929, 718 N.Y.S.2d 765 [4th Dept. 2000] ), or that defendants' actions caused plaintiff to fear for her safety (see Nainan v. 715–723 Sixth Ave. Owners Corp., 177 A.D.3d 489, 491, 113 N.Y.S.3d 50 [1st Dept. 2019];  Sheila C., 11 A.D.3d at 130, 781 N.Y.S.2d 342] ).  Extreme and outrageous conduct continues to be an essential element of a cause of action alleging negligent infliction of emotional distress (see Holmes v. City of New York, 178 A.D.3d 496, 111 N.Y.S.3d 856 [1st Dept. 2019];  Melendez v. City of New York, 171 A.D.3d 566, 567, 98 N.Y.S.3d 178 [1st Dept. 2019], lv denied 33 N.Y.3d 914, 2019 WL 4383502 [2019];  but see Taggart v. Costabile, 131 A.D.3d 243, 14 N.Y.S.3d 388 [2d Dept. 2015] ).  Whether the requisite outrageousness has been alleged is, in the first instance, an issue of law for the courts (Cavallaro v. Pozzi, 28 A.D.3d 1075, 1078, 814 N.Y.S.2d 462 [4th Dept. 2006];  Sheila C. 11 A.D.3d at 131, 781 N.Y.S.2d 342).  Although the alleged removal of plaintiff from the decedent's room following his passing was distressing to her, it was not sufficiently extreme or outrageous so as to support plaintiff's claim (see generally Sheila C., supra ).

The court properly rejected plaintiff's argument that defendants wrongfully withheld the decedent's medical records.  Plaintiff was appointed administrator of decedent's estate prior to the alleged withholding, and this argument should be raised in her capacity as administrator (see Public Health Law § 18[1][g], [3];  see also Smalls v. St. John's Episcopal Hosp., 152 A.D.3d 629, 630, 58 N.Y.S.3d 536 [2d Dept. 2017] ).

We have considered the remaining arguments and find them unavailing.