Mistretta v. Akashic Books, Ltd.

Opinion

Mistretta v Akashic Books, Ltd.

2026 NY Slip Op 04939

August 12, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Salvatore Mistretta, appellant,

v

Akashic Books, Ltd., respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2023-11433, (Index No. 613328/23)

Colleen D. Duffy, J.P.

Paul Wooten

Janice A. Taylor

Phillip Hom, JJ.

Salvatore Mistretta, Seaford, NY, appellant pro se.

Goetz Schenker Blee & Wiederhorn LLP, New York, NY (Jeffrey Rubinstein of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for negligent infliction of emotional distress, the plaintiff appeals from an order of the Supreme Court, Nassau County (Christopher G. Quinn, J.), dated November 28, 2023. The order, insofar as appealed from, granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.

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

In August 2023, the plaintiff commenced this action against the defendant to recover damages for negligent infliction of emotional distress. The plaintiff alleged, among other things, that the defendant published a book containing an inaccurate description of the circumstances of the death of the plaintiff's mother. The defendant moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint. The plaintiff opposed the motion. In an order dated November 28, 2023, the Supreme Court, among other things, granted that branch of the motion. The plaintiff appeals.

A cause of action to recover damages for negligent infliction of emotional distress "generally must be premised upon the breach of a duty owed to [the] plaintiff which either unreasonably endangers the plaintiff's physical safety, or causes the plaintiff to fear for his or her own safety" (A.R. v City of New York, 206 AD3d 768, 770 [internal quotation marks omitted]; see Orrego v Knipfing, 240 AD3d 605, 608). A plaintiff may also recover damages for negligent infliction of emotional distress in certain special circumstances, such as the "transmission of false information that a parent or child had died" (Taggart v Costabile, 131 AD3d 243, 253; see SanMiguel v Grimaldi, ___ NY3d ___, ___, 2025 NY Slip Op 05780, *2).

Here, accepting as true the allegations in the complaint (see Orrego v Knipfing, 240 AD3d at 608), the Supreme Court properly determined that the complaint failed to state a cause of action for negligent infliction of emotional distress. The plaintiff never alleged that he feared for his own safety or that any acts of the defendant unreasonably endangered the plaintiff's physical safety (see A.R. v City of New York, 206 AD3d at 770; E.B. v Liberation Publs., 7 AD3d 566, 567). The complaint also did not adequately allege facts that would establish any special circumstances giving rise to a duty to avoid causing mental disturbance (see Taggart v Costabile, 131 AD3d at 253).

The plaintiff's remaining contention is without merit.

Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.

DUFFY, J.P., WOOTEN, TAYLOR and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court