Prosser v 189-191 Realty, LLC
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Prosser v 189-191 Realty, LLC 2014 NY Slip Op 33123(U) December 2, 2014 Sup Ct, New York County Docket Number: 150123/11 Judge: Anil C. Singh 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 61 -----------------------------------------------------------------)( PETER PROSSER, LISA ARK.IS, and JOEL CHATFIELD, Plaintiffs, DECISION AND ORDER Index No. 150123/11 -against189-191 REALTY, LLC, BMH REALTY, LTD. d/b/a HELLER REAL TY, and PEST AWA Y EXTERMINATING, INC., Defendants. -----------------------------------------------------------------X HON. ANIL C. SINGH, J.: Defendants 189-191 Realty, LLC, and BMH Realty, Ltd., d/b/a Heller Realty (the "Realty" defendants) move for partial summary judgment pursuant to CPLR 3212, dismissing the claims of plaintiff Lisa Arkis for intentional and negligent infliction of emotional distress based on an infestation of bedbugs in her apartment. Co-defendant Pest Away Exterminating, Inc. ("Pest A way") crossmoves for partial summary judgment, also seeking dismissal of the claims for emotional distress. Plaintiffs oppose the motion and cross-motion. The material facts are as follows. Plaintiffs Peter Prosser, Lisa Arkis and Joel Chatfield are tenants who reside in apartments at 189-191 Claremont Avenue in Manhattan. The Realty defendants Page I of 4 [* 2] are the landlord and managing agent of building. Plaintiffs contend that their ap8:rtments became infested with bedbugs on two separate occasions in 2007 and 2010. The landlord hired Pest Away to eliminate the insects. Plaintiffs commenced the instant personal injury action by filing a summons and complaint. The complaint alleges that each infestation began with bedbugs in one apartment and, due to defendants' failure to follow proper procedures, spread to other apartments. The complaint asserts causes of action for breach of the implied warranty ofhabit~bility (first cause of action), negligence (second cause of action), negligent infliction of emotional distress (third cause of action), and intentional infliction of emotional distress (fourth cause of action). In the motion and cross-motion, defendants are moving to dismiss the causes of action for intentional and negligent infliction of emotional distress of plaintiff Lisa Arkis. It is important to note that on May 22, 2014, this Court dismissed the claims of plaintiffs Peter Prosser and.Joel Chatfield for negligent and intentional infliction of emotional distress. Discussion The standards for summary judgment are well settled. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to Page 2 of 4 [* 3] judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 [1985]). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion (id.) Summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law (Alvarez v. Propect Hosp., 68 N.Y.2d 320, 324 [1986]). Moreover, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining (Zuckerman v. City of New York, 49 N.Y.2d 557, 560 [1980]). "In determining whether summary judgment is appropriate, the motion should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v. J.C. Duggan. Inc., 180 A.D.2d 579, 580 [151 Dept., 1992], citing Assaf v. Ropog Cab Corp., 153 A.D.2d 520, 521 [1st Dept., 1989]). In short, the Court finds that the record fails to establish facts sufficient to make out a prima facie case for negligent or intentional infliction of emotional distress (see, for example, Bour v. 259 Bleecker LLC, 104 A.D.3d 454 [1st Dept., 2013]). Accordingly, it is Page 3 of 4 [* 4] ORDERED that the Realty defendants motion for partial summary judgment is granted; and it is further ORDERED that defendant Pest Away's cross-motion for partial summary judgment is granted; and it is further ORDERED that the third cause of action (negligent infliction of emotional distress) and fourth cause of action (intentional infliction of emotional distress) of plaintiff Lisa Arkis's complaint are dismissed. The foregoing constitutes the decision and order of the court. Date: ~'-- 2..., 2..a\y Anil C. Singh New York, New York Page 4 of 4
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