Schell v. Nassau County Department of Health

237 A.D.2d 423, 655 N.Y.S.2d 963, 1997 N.Y. App. Div. LEXIS 2514

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 1997
• Status: Published

Opinion

In an action to recover damages, inter alia, for intentional infliction of emotional distress, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brucia, J.), entered December 14, 1995, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

After the defendants made a prima facie showing of their entitlement to summary judgment, the plaintiff failed to show admissible facts sufficient to require a trial on the issue of whether the defendants’ conduct was so extreme and outrageous as to constitute the tort of intentional infliction of emotional distress (CPLR 3212 [b]; see, Freihofer v Hearst Corp., 65 NY2d 135; see also, Murphy v American Home Prods. Corp., 58 NY2d 293, 303; Glendora v Walsh, 227 AD2d 377; Ruggiero v Contemporary Shells, 160 AD2d 986).

Moreover, because the plaintiff failed to offer proof in evidentiary form that he was terminated from his position as deputy commissioner of the Nassau County Health Department, he was not entitled to a hearing under Public Health Law § 354. Nor did he offer sufficient evidence that the change in his duties came in retaliation for memoranda he had written two years earlier in which he criticized the lack of sufficient staff in his department (Labor Law § 740). Therefore, the court properly granted the defendants’ motion for summary judgment dismissing the complaint (CPLR 3212 [b]; see, Zuckerman v City of New York, 49 NY2d 557, 562). Bracken, J. P., O’Brien, Krausman and Goldstein, JJ., concur.