New York State Court of Claims

New York State Court of Claims
BROWN v. THE STATE OF NEW YORK, # 2009-031-071, Claim No. 109948, Motion No. M-77000


Although Defendant's negligent maintenance of sewer lines caused damage to Claimants' properties, Claimants cannot recover for emotional damages related to their losses.

Case information

UID: 2009-031-071
Claimant(s): KATE BROWN
Claimant short name: BROWN
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 109948
Motion number(s): M-77000
Cross-motion number(s):
Claimant's attorney: DADD AND NELSON, PLLC
Defendant's attorney: HON. ANDREW M. CUOMO
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 30, 2009
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case) 2009-031-072, 2009-031-073, 2009-031-074


In March 2004, Claimants Ernestine V. Austin, Mary Elizabeth Kibler, Kate Brown and Maurietta Fountain were property owners on the west side of Exchange Street in the Town of Attica, New York. Their properties were bounded on the west by Tonawanda Creek. In early March 2004, land collapsed along a fault line on the west side of Exchange Street, causing damage to their properties. Claimants commenced their respective actions, each alleging that negligent operations at Attica Correctional Facility caused the land to collapse.

After a trial on liability in which I determined that Defendant was responsible for 100% of the loses suffered by Claimants for damage to Claimants' real property, a damages trial was scheduled. During preparations for the trial on damages, the parties disagreed over whether or not Claimants could recover for emotional trauma caused by the damage to, or complete loss of, their respective properties. In that regard, Defendant brings these motions, each for the same relief, asking that the Court preclude Claimants from offering evidence at the damages trial relating to emotional trauma suffered as a result of their losses.

After a review of these matters, and upon oral argument from counsel, I find that Claimants may not recover such damages in this matter. Although New York does recognize a cause of action for negligent infliction of emotional distress, recovery in such cases is extremely circumscribed and "must generally be premised upon a breach of a duty owed directly to the plaintiff [or claimant] which either unreasonably endangers a plaintiff's [or claimant's] physical safety or causes the plaintiff [or claimant] to fear for his or her own safety" (Daluise v Sottile, 40 AD3d 801, 803 [citations omitted]). A claimant is required to show that defendant's conduct was "extreme and outrageous" (Howell v New York Post Co., 81 NY2d 115, 121). Although Claimants have demonstrated that Defendant was negligent, there is no evidence that Defendant's misfeasance was either extreme or outrageous, or that Defendant's actions genuinely placed any Claimant's physical safety in danger.

Further, in Kennedy v McKesson Co. (58 NY2d 500), the Court of Appeals held that no recovery can be had for emotional damages that do not directly flow from the duty breached.

"The rule to be distilled . . . is that there is no duty to protect from emotional injury a bystander to whom there is otherwise owed no duty, and, even as to a participant to whom a duty is owed, such injury is compensable only when a direct, rather than a consequential, result of the breach." 58 NY2d at 506.

Here, the Defendant breached a duty to properly maintain its sewer lines. Any emotional trauma suffered by Claimants as a result of this breach was a consequential as opposed to a direct result of this breach.

Finally, I note that in Caprino v Silsby (226 AD2d 1078), the Appellate Division, Fourth Department, clearly set forth that "[r]ecovery for emotional distress may not be predicated upon the observation of unintended damage to one's property." Although the Claimants here have alleged that they have suffered emotional harm as a result of the loss of their homes, there are no allegations and no evidence that they suffered such trauma as a result of fear for their own physical safety.

I find, therefore, that Claimants cannot recover for the negligent infliction of emotional distress in this matter. Accordingly, it is hereby

ORDERED, that Defendant's motions to preclude Claimants from offering evidence of emotional damages suffered by Claimants are GRANTED.

December 30, 2009

Rochester, New York


Judge of the Court of Claims

Papers Considered:

1. Defendant's Notices of Motion, filed July 27, 2009;

2. Affirmations of Reynolds E. Hahn, Esq., with attached exhibits;

3. Affirmations of David H. Nelson, Esq., dated August 12, 2009;

4. Claimants' Memorandums of Law, dated August 12, 2009;

5. Correspondence from chambers, dated September 4, 2009;

6. September 23, 2009 correspondence from Claimants' counsel;

7. September 24, 2009 correspondence from Defendant's counsel.