Capellan v Marsh

Capellan v Marsh 2010 NY Slip Op 02010 [71 AD3d 505] March 16, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

Marisol Capellan et al., Appellants,
v
Alan Douglas Marsh, Respondent.

—[*1] Warren L. Millman, New York, for appellants.

Gallet Dreyer & Berkey, LLP, New York (Michelle P. Quinn of counsel), for respondent.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered January 15, 2009, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered March 24, 2009, which denied plaintiffs' motion to reargue the previous order, unanimously dismissed, without costs, as taken from a nonappealable paper.

The complaint failed to state a cause of action for negligent infliction of emotional distress because the allegations fell far short of the atrocious conduct required to sustain such a claim, and it never expressed danger to—or fear for—Marisol Capellan's physical safety (see Sheila C. v Povich, 11 AD3d 120, 130-131 [2004]). The allegations of sexual harassment did not fit under any cognizable legal theory. Contrary to plaintiffs' assertion, no provision of the Executive Law—in particular, section 296—applies to the situation set forth in the complaint. Concur—Tom, J.P., Sweeny, Catterson, Moskowitz and DeGrasse, JJ.