De Rosa v. Michelman

184 A.D.2d 490, 584 N.Y.S.2d 202, 1992 N.Y. App. Div. LEXIS 7770

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 1992
• Status: Published

Opinion

In an action to recover damages, inter alia, for breach of contract and negligent infliction of emotional distress, the plaintiffs appeal from an order of the Supreme Court, Rockland County (Meehan, J.), dated April 3, 1990, which granted the defendants’ motion to dismiss the plaintiffs’ third cause of action to recover damages for negligent infliction of emotional distress.

Order that the order is affirmed, with costs.

The plaintiffs sought the legal services of the defendants for the purpose of adopting a child. Although the plaintiffs subsequently obtained a child for adoption, the child’s natural mother subsequently revoked her consent to the adoption. The plaintiffs thereafter commenced the instant action claiming, inter alia, they suffered emotional injuries resulting from the defendants’ conduct.

The plaintiffs have failed to state a cause of action for negligent infliction of emotional distress. We disagree with the plaintiffs’ contention that they may recover damages for negligent infliction of emotional distress merely because a direct duty was owed to them and a breach of that duty resulted in emotional injury. While physical injury is no longer a necessary element, a cause of action to recover damages for negligent infliction of emotional distress must generally be premised upon conduct which "unreasonably endangers” the plaintiff’s physical safety (see, Goodman v Karlin, 159 AD2d 483; Lancellotti v Howard, 155 AD2d 588; Green v Leibowitz, 118 AD2d 756). No such conduct is alleged here. The plaintiffs’ claim does not come within any recognized exception to the foregoing principle. Thompson, J. P., Bracken, Sullivan and Santucci, JJ., concur.