D.W., Plaintiff, v. S.R., Defendant. (2026)

Defendant moves to dismiss the complaint pursuant to CPLR § 3211 (a)(1) and (7). The Court considered NYSCEF document numbers 1 through 10 as well as the transcript from oral arguments held on February 6, 2026, before Justice Dennis E. Ward (who recused), and further oral arguments held before this Court on July 17, 2026.

On a motion to dismiss pursuant to CPLR 3211, the Court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff with the benefit of every possible favorable inference. Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss. (Leister v Vanini, 208 AD3d 1625, 1626 [4th Dept 2022][internal citations omitted]).

Plaintiff's complaint alleges that in February of 2025 the Defendant, without Plaintiff's consent, released a photograph to another individual (W. Complaint at ¶¶ 6, 10-13). The photograph, which was submitted during oral arguments on consent of both parties, depicts the male Plaintiff, wearing nothing but bikini briefs, seemingly bound with his hands behind his back, with what appears to be a ball gag in his mouth and a milky whitish substance down his beard. The picture also shows another individual's arm reaching out with their hand grabbing the hair of the Plaintiff and apparently pulling his head back.

Plaintiff's first cause of action is brought under Civil Rights Law § 52-b, which creates a private right of action for the unlawful dissemination or publication of an intimate image where the image (1) was taken when the person had a reasonable expectation of privacy, and (2) depicts either (i) an unclothed or exposed intimate part, or (ii) sexual conduct as defined in Penal Law § 130.00(10).

Although CRL § 52-b does not contain its own definition of "intimate part" courts consistently use the Penal Law § 130.00 definition of "sexual or other intimate parts," which includes, genitals, pubic area, buttocks, and female breast (see also Penal law § 245.15 [defines "intimate part" as "naked genitals, pubic area, anus or female nipple"). Section 130.00 defines sexual conduct as vaginal sexual contact, oral sexual contact, anal sexual contact, aggravated sexual contact, or sexual contact.

The picture, as described above, does not depict genitals, the pubic area, buttocks, or female nipple. The image also fails to depict any "sexual conduct" as defined by Section 130.00 of the Penal Law. Because the image fails to depict either statutory component, the complaint fails to state a cause of action under Civil Rights Law § 52-b.

Plaintiff's third, and fourth causes of action sound in intentional and reckless infliction of emotional distress respectively. The tort of reckless infliction of emotional distress is not a separate cause of action and is encompassed within the tort denominated intentional infliction of emotional distress ("IIED") (see Dana v Oak Park Marina, Inc., 230 AD2d 204, 208-209, [4th Dept 1997]). "The tort of intentional infliction of emotional distress has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. Liability for intentional infliction of emotional distress is rare and is appropriate only where the conduct has been 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." (Leister at 1626, quoting Howell v New York Post Co., 81 NY2d 115, 121 [1993][internal quotation marks omitted]).

"To avoid exposing a defendant to broad or otherwise unfair liability under an IIED claim, the elements of the cause of action are difficult to satisfy. The first element—extreme and outrageous conduct—is the most demanding element to meet. The element of extreme and outrageous conduct serves two purposes: filter out petty and trivial complaints that do not belong in court, and assure that a plaintiff's claim of severe emotional distress is genuine" (Brown v Riverside Church, 231 AD3d 104, 109 [1st Dept 2024]).

To successfully satisfy the extreme and outrageous conduct element courts look to see if the defendant has abused a position of power over the plaintiff, emotionally harmed an especially vulnerable plaintiff, or sustains a continued and repeated campaign of harassment (see Brown at 110; Cavallaro v Pizzi, 28 AD3d 1075, 1078 [4th Dept 2006]; Lopez v Trahan, 234 AD3d 552, 554 [1st Dept 2025]; Vasarheyi v New School, 230 AD2d 658, 661 [1st Dept 1996].

Accepting plaintiff's allegations as true and granting him every possible favorable inference, releasing a single compromising photograph to one individual, cannot be deemed "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" (Chanko v. American Broadcasting Cos. Inc., 27 NY3d 46, 56 [2016] [internal quotation marks omitted]).

Plaintiff's second cause of action is for negligent infliction of emotional distress ("NIED"). Unlike intentional infliction of emotional distress there is no requirement to allege extreme and outrageous conduct (see Taggart v Costabile, 131 AD3d 243, 256-257 [2d Dept 2015]). To maintain such a claim, however, the Defendant must owe a direct duty of care to the Plaintiff (id). As the 4th Department stated in Dana v Oak Park Marina, (230 AD2d 204, 208 [4th Dept 1997]), "[t]here is no common-law right to privacy." Because CRL § 52 b is inapplicable, no statutory duty exists, and Defendant owed no duty sounding in negligence.

Separately, NIED requires conduct that "unreasonably endangers the plaintiff's physical safety or causes the plaintiff to fear for his or her physical safety" (Passucci v Home Depot, Inc., 67 AD3d, 1470, 1471 [4th Dept 2009] quoting Padilla v Verczky-Porter, 66 AD3d 1481, 1483 [4th Dept 2009]). The complaint alleges no such endangerment or fear.

Accordingly, it is hereby

ORDERED, that Defendant's motion to Dismiss pursuant to CPLR 3211 is GRANTED in its entirety; and it is further

ORDERED, that this represents the Decision and Order of the Court.

Dated: July22, 2026

Raymond W. Walter, J.S.C.

ENTER:

Raymond W. Walter, J.