Memorandum of Law in Opposition, with Exhibits 4
In this claim, claimants seek damages for severe emotional distress resulting
from alleged acts of harassment by fellow officers of claimant Michael L.
Monteiro at Five Points Correctional Facility in Romulus, New York. According
to the claim, these acts of harassment commenced after claimant Michael L.
Monteiro was suspended and fined for using false pretenses to spend two weeks at
"Ground Zero" following the attacks on the World Trade Center on September 11,
In the claim, claimants allege that, inter alia, Mr. Monteiro has been
subjected to verbal harassment while at work, that vile and outrageous poems
about him have been circulated throughout the facility, and that the lives of
Mr. and Mrs. Monteiro and their family have been threatened, including threats
to burn down their home. This behavior is alleged to be "so egregious,
outrageous and vile as to shock the conscience of right thinking persons" (see
Claim, par. 10).
From a reading of this claim, it is abundantly clear that the only cause of
action alleged by claimants is one for the intentional infliction of emotional
It is equally well-settled,
however, that public policy prohibits any recovery against the State for this
tort of intentional infliction of emotional distress (Wheeler v State of New
, 104 AD2d 496; DeLesline v State of New York
, 91 AD2d 785, lv
58 NY2d 610).
Claimants, however, have attempted to distinguish the instant claim from those
in which the "public policy" immunity was established or followed. Claimants
argue that the "public policy" immunity was established to insure that State
employees could do their job without fear of tort liability for their conduct,
even if such conduct caused emotional distress to an individual. In other
words, as long as the employee was engaged in legitimate State activity, the
actual motive behind such activity could not be called into question.
In this claim, however, claimants argue that it is not the motive behind
legitimate state activity which forms the basis for their claim, but rather the
very actions of various State employees which has caused the injury to
However, the long-standing public policy prohibiting the imposition of
liability against the State for intentional infliction of emotional distress has
been upheld in cases involving sexual and verbal harassment against a fellow
State employee (see, Brown v State of New York, 125 AD2d 750, lv to
appeal dismissed, 70 NY2d 747), as well as in claims alleging verbal
harassment of inmates by correction officers (see, Gagne v State of New
York, Claim No. 98686, Motion No. M-63259, Decision and Order dated November
30, 2001, Patti, J.). Therefore, the rule is well established that public
policy prohibits an action against the State for intentional infliction of
emotional distress in performing acts that constitute official conduct, and that
such policy is applicable to the instant claim.
Furthermore, however reprehensible the conduct alleged in this claim may be,
claimants have identified no other legally cognizable theory of recovery against
the State. Accordingly, while not condoning the acts alleged herein, the Court
finds that it must dismiss the claim.
Therefore, it is
ORDERED, that Motion No. M-64797 is hereby GRANTED; and it is further
ORDERED, that Claim No. 105524 is hereby DISMISSED.