Erani v. Flax

193 A.D.2d 777, 598 N.Y.S.2d 268, 1993 N.Y. App. Div. LEXIS 5225

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 24, 1993
• Status: Published

Opinion

In an action to recover damages for mental anguish and emotional distress arising out of alleged exposure to asbestos, the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Ramirez, J.), entered March 4, 1991, as, upon granting the motion of defendants Cecelia Flax and Fay Etta Flax for summary judgment, directed the Clerk to enter judgment in favor of BPC Management Corporation.

Ordered that the order is affirmed insofar as appealed from, with costs.

We find that summary judgment dismissing the complaint against all the defendants was properly granted. The plaintiffs allege that they have suffered emotional distress and mental anguish due to the negligence of the respondent BPC Management Corporation in leaving asbestos-containing materials in the basement of their store. However, the plaintiffs have not presented any clinical evidence that they have suffered asbestos contamination, and have not presented any medical evidence of emotional distress. Therefore, their cause of action is far too speculative, and must be dismissed (see, Conway v Brooklyn Union Gas Co., 189 AD2d 851; Rittenhouse v St. Regis Hotel Joint Venture, 180 AD2d 523). Rosenblatt, J. P., Miller, Eiber and Pizzuto, JJ., concur.