On December 10, 2021, Justice Masley of the New York County Commercial Division issued a decision in Gardner v. Virtuoso Ltd., 2021 NY Slip Op. 32651(U), dismissing infliction of emotional distress claims based on alleged defamatory comments, explaining:
Plaintiff Gardner alleges that the statements made by defendants negligently (sixth cause of action) and intentionally (seventh cause of action) caused her substantial emotional distress. Defendants argue that the statements were made to third parties and Gardner did not rely on them and that any alleged statements were not outrageous.
A cause of action to recover damages for negligent infliction of emotional distress generally requires a plaintiff to show a breach of a duty owed to him which unreasonably endangered his physical safety or caused him to fear for his own safety.
The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causations; and (4) severe emotional distress. By comparison, a claim for negligent infliction of emotional distress removes the element of intentional conduct and imposes negligence as an essential element.
The seventh cause of action is dismissed because defendants’ statements were not made to Gardner. Plaintiffs rely on Virtuoso’s oral statements to 24 entities and written statements published on its network. Moreover, Gardner fails to state a valid claim for negligent infliction of emotional distress because she does not allege that the conduct either unreasonably endangers a plaintiff’s physical safety or causes the plaintiff to fear for his or her own safety. Gardner’s claim for intentional infliction of emotional distress is also lacking because making statements, even if false and defamatory, does not constitute extreme and outrageous conduct.
(Internal quotations and citations omitted).