Pailliere v. Town of Hempstead , 19 N.Y.S.3d 179 ( 2015 )

Pailliere v Town of Hempstead (2015 NY Slip Op 08394)

Pailliere v Town of Hempstead

2015 NY Slip Op 08394

Decided on November 18, 2015

Appellate Division, Second Department

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

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

Decided on November 18, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
THOMAS A. DICKERSON
LEONARD B. AUSTIN
JOSEPH J. MALTESE, JJ.

2014-02809
(Index No. 21392/10)

[*1]Nicole Pailliere, appellant,

v

Town of Hempstead, et al., respondents.

Sim & Record, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. (Randy S. Nissan of counsel), for respondent Town of Hempstead.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Judy C. Selmeci of counsel), for respondent Carl C. Burnett Funeral Home, Inc.

DECISION & ORDER

In an action, inter alia, to recover damages for negligent infliction of emotional distress, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Brown, J.), entered January 7, 2014, as granted those branches of the motion of the defendant Town of Hempstead and the cross motion of the defendant Carl C. Burnett Funeral Home, Inc., which were pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of them.

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

The Supreme Court properly granted those branches of the motion of the defendant Town of Hempstead and the cross motion of the defendant Carl C. Burnett Funeral Home, Inc., which were pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of them. Accepting the allegations in the complaint as true, and affording the plaintiff the benefit of every favorable inference (see Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881, 884; Leon v Martinez, 84 NY2d 83, 87-88), the complaint failed to state a cause of action to recover damages for negligent infliction of emotional distress (see Schultes v Kane, 50 AD3d 1277, 1278; Estate of LaMore v Sumner, 46 AD3d 1262, 1264). The complaint also failed to state a cause of action to recover damages for desecration of a grave (see Toppin v Town of Hempstead, 121 AD3d 883, 884; Brandenburg v St. Michael's Cemetery, 92 AD3d 631, 632).

MASTRO, J.P., DICKERSON, AUSTIN and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court