Rodriquez v The Oak Room

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Rodriquez v The Oak Room 2012 NY Slip Op 33639(U) April 4, 2012 Supreme Court, New York County Docket Number: 107961/2011 Judge: Richard F. Braun Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 4/9/2012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY HON. RlctltJID_ P. WUN JS C · -----.... _ . · : Index Number : 107961/201--1~- I 1 ~ART . ·. .· · " p.. J, - I. : I I ' : RODRIGUEZ, MELISSA I ·- INDEX 1\10. ¢VS ;OAK ROOM _eJ-..a, I · ; J : I ' MOTION DATE -- I - pi : Sequence Number : 001 i MOTION SEO. NO, DISM ACTION/ INCONVENIENT FORUM I \ MOTION C_AL. NO. The foll,owlng,,~apers, numbered 1 to _ _ were read on this motion .to/t.r J1.~&11$ S. _. PAfERS NVMSEB~J? · I ti- Notice of Motion/ Ord1;Jr to. Show Cause - Affidavits - Exhibits ... Answering Affidavits - 0 l Exhibits --~--------- ·._Replying Affidavits Clioss ¢Motion-:-D--Y-es--fi'-N_o_ _ _ _ _ --1.. .~ ii Upon the foregoing pepera, It lo order.,J thst thlo motion,..;,..,~ ;f;, ~~ ~2~~~r~~ 1:r~~ ~~. ~··1~~~&9 ~ ~-fr f . ~ ¢ ~ ~"· : 'I .~-),OfA,). Df'P~ ltP;eJ\ -4 ~ ~- ~ M--1~ - I ..,.)-;tt;; ~ ~_, I ·~ I ~-~-~-,,_,~~.vi ~ cMV't~ µ,o ~, I ~~,fe~ , .. FILED ~ ~ APR 09 2012 I NEWYORK · COUNTY C~RK1S OFFICE Dated: /.J .(.WI~ <k.. I w#:w ID 'Y ~-t ·~ I3) ~V. . FtJf?J,f!= ~--"' J.S.C. D FINAL DISPOSITION ~-FINAL DISPOSITION 0 0 Check if appropriate: ·-;,; D --- ¢ IYV Check one: p.z_ SUBMIT ORDER/JUDG. DO NOT POST D REFERENCE SETTLE ORDER /JUDG. r ,. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 23 -----------------------------------------X Index No. 107961/11 MELISSA RODRIGUEZ, Plaintiff, OPINION -againstTHE OAK ROOM, ERIC HARA, and CPS HOSPITALITY, LLC. Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X RICHARD F. BRAUN, J.: FILED APR 09 2012 NEW YORK COUNTY CLERK'S OFFICE This is an action for intentional infliction of emotional distress and prima facie tort. Defendants move to dismiss plaintiffs complaint for failure to state a cause of action (CPLR 3211 [a] [7]). On a motion pursuant to CPLR 3211 (a) (7 ), a complaint must be liberally construed, the factual allegations therein must be accepted as true, the plaintiff must be given the benefit of all favorable inferences therefrom, and the court must decide only whether the facts alleged fall under any recognized legal theory (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]; Salles v Chase Manhattan Bank, 300 AD2d 226, 228 [I st Dept 2002]). Plaintiff was hired to work as a pastry cook. Plaintiff alleges that her supervisor defendant Eric Hara (Hara) physically picked her up and threw her in a garbage can, and also in a mixer unit or demanded that she put herself in the latter; that he would put food in her hair and forced her to break eggs within her shirt, and compelled her to continue to work that way; that he used derogatory language toward her; that he did not allow plaintiff to say no when replying to demands; and that he made threats, such as that plaintiff would be fired. [* 3] The elements of a claim for intentional infliction of emotional distress are "(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." (Howell v New York Post Co., Inc., 81NY2d115, 121 [1993]; accord Lau v S&M Enters., 72 AD3d 497, 498 [l "1 Dept 2010].) The conduct must be so outrageous as to be intolerable in a civilized community (164 Mulberry St. Corp. v Columbia Univ., 4 AD3d 49, 56 [l ' 1 Dept 2004]). The alleged actions of defendant Hara were more than petty and, if true, constituted a campaign of despicable harassment, and are arguably actionable under this tort (see Nader v General Motors Corp., 25 NY2d 560, 569 [1970]; Shannon v MFA Metro-N R.R., 269 AD2d 218, 219 [1st Dept 2000]; Vasarhelyi v New School for Social Research, 230 AD2d 658, 661 [l "1 Dept 1996]; cf Ferguson v City ofNew York, 273 AD2d 103 [l "t Dept], lv dismissed 95 NY2d 902 [2000], lv denied 96 NY2d 704 [2001] [where the allegations of the plaintiff were held to be inadequate to constitute the tort]). The first cause of action was dismissed as to defendants The Oak Room and CPS Hospitality, LLC, as the allegations against those entities are conclusory and thus insufficient to plead a claim of intentional infliction of emotional distress (see Kaisman v Hernandez, 61 AD3d 565, 566 [1st Dept 2009]; Millan v City ofNew York, 16 AD3d 290 [1st Dept 2005]). The elements of a prima facie tort are intentional infliction of harm, causing special damages, without justification or excuse, by an act or series of acts that would otherwise be lawful (Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985]). Plaintiffs allegations do not specify the claim of a prima facie tort. Plaintiff speculates that discovery will elucidate her claims, which is inadequate to deny the motion under CPLR 3211 ( d) (see de Capri/es v Lugo, 293 AD2d 405, 406 [1st Dept 2002]; Gladliz, 2 ._ I [* 4] Inc. v Castiron Ct. Corp., 177 Misc 2d 392, 398-399 [Sup Ct, NY County 1998]; cf Amigo Foods Corp. v Marine Midland Bank-NY, 39 NY2d 391, 395 [1976] [where the Court permitted the opposing party discovery because it was demonstrated that facts may have existed in opposition to the motion to dismiss]). Therefore, by the separate April 3, 2012 decision and order of this court, the motion was granted to the extent of dismissing the first cause of action against defendants The Oak Room and CPS Hospitality, LLC, and the second cause of action against all defendants. The remaining claim against defendant Hara was severed and shall continue. Dated: New York, New York April 4, 2012 RICHARD F. BRAUN, J.S.C. FILED APR 09 2012 NEW YORK COUNTY CLERK'S OFFICE 3

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