CASARES v. VILLAGE OF WESTBURY (2026)

DECISION & ORDER

In an action to recover damages for mental anguish, the plaintiff appeals from an order of the Supreme Court, Nassau County (Diccia T. Pineda–Kirwan, J.), dated February 24, 2023.  The order granted the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the amended complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for “mental anguish” stemming from the defendants’ removal of a tree from the street in front of her property before she could mount a legal challenge to the tree's removal.  The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the amended complaint.  In an order dated February 24, 2023, the Supreme Court granted the motion.  The plaintiff appeals.

“ ‘On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory’ ” (Weinstein v. Levitin, 208 A.D.3d 531, 532, 173 N.Y.S.3d 290, quoting Gruber v. Donaldsons, Inc., 201 A.D.3d 887, 888, 162 N.Y.S.3d 393;  see Clevenger v. Yuzek, 222 A.D.3d 931, 934, 203 N.Y.S.3d 114).  “Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery” (Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142, 53 N.Y.S.3d 598, 75 N.E.3d 1159;  see Wedgewood Care Ctr., Inc. v. Kravitz, 198 A.D.3d 124, 130, 154 N.Y.S.3d 312).

Here, contrary to the plaintiff's contention, the amended complaint does not assert a cause of action predicated upon negligent infliction of emotional distress.  “A cause of action to recover damages for negligent infliction of emotional distress generally requires a plaintiff to show a breach of a duty owed to him [or her] which unreasonably endangered his [or her] physical safety, or caused him [or her] to fear for his [or her] own safety” (Borrerro v. Haks Group, Inc., 165 A.D.3d 1216, 1219, 87 N.Y.S.3d 618 [internal quotation marks omitted];  see Sacino v. Warwick Val. Cent. Sch. Dist., 138 A.D.3d 717, 719, 29 N.Y.S.3d 57).  “[A]llegations of intentional conduct ․ ‘cannot form the basis of a cause of action sounding in negligence’ ” (Davydov v. Youssefi, 205 A.D.3d 881, 884, 169 N.Y.S.3d 322, quoting Trayvilla v. Japan Airlines, 178 A.D.3d 746, 747, 111 N.Y.S.3d 224;  see Gruber v. Donaldsons, Inc., 201 A.D.3d at 889, 162 N.Y.S.3d 393).  Here, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the amended complaint for failure to state a cause of action, as the amended complaint failed to allege negligence (see Whitfield v. Law Enforcement Empls. Benevolent Assn., 237 A.D.3d 1139, 233 N.Y.S.3d 615;  Gruber v. Donaldsons, Inc., 201 A.D.3d at 889, 162 N.Y.S.3d 393).

The defendants’ remaining contentions are academic in light of the foregoing.

CHAMBERS, J.P., WOOTEN, DOWLING and LOVE, JJ., concur.