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Supreme Court, Appellate Division, Fourth Department, New York.

Donald J. SALAMONE and Patricia A. Salamone, Individually and as Parents and Natural Guardians of Nicole M. Salamone and Christine P. Salamone, Plaintiffs-Appellants, v. OAK PARK MARINA, INC., Edwin Lupo and Todd Lupo, Defendants-Respondents, et al., Defendant.

Decided: March 31, 1999

PRESENT:  GREEN, J.P., PINE, WISNER, HURLBUTT and CALLAHAN, JJ. Sam Cipolla of counsel, Culley, Marks, Tanenbaum, Capell & Pezzulo, Rochester, for plaintiffs-appellants. Richard E. Alexander of counsel, Harter Secrest & Emery, Rochester, for defendants-respondents.

 Supreme Court erred in granting that part of defendants' motion for summary judgment dismissing the causes of action for negligent and reckless infliction of emotional distress.   Contrary to the court's determination, a plaintiff need not prove that he or she was in fact videotaped in order to recover under such causes of action.

With respect to the cause of action for negligent infliction of emotional distress, plaintiffs allege that defendants illegally installed a videotape camera in the ladies' rest room at the marina in violation of General Business Law § 395-b(2).   That statute imposes a duty upon the owner of the premises “to refrain from installing a videotape camera in the ladies' rest room at the marina” and is “intended to protect persons * * * who are surreptitiously viewed while lawfully utilizing the described facilities” (Dana v. Oak Park Marina, 230 A.D.2d 204, 208, 660 N.Y.S.2d 906).   The duty is breached by the installation of the videotape camera.

 With respect to the cause of action for reckless infliction of emotional distress, a plaintiff need not establish as an essential element of the cause of action that he or she appears in the videotapes (see, Harkey v. Abate, 131 Mich.App. 177, 346 N.W.2d 74).   A plaintiff may recover for the reckless infliction of emotional distress if it is shown that he or she has suffered emotional distress as a result of the defendant's outrageous conduct.

Order modified on the law and as modified affirmed with costs to plaintiffs.


All concur. PINE, J., not participating.