Trapp-White v. Fountain

Trapp-White v Fountain (2017 NY Slip Op 00948)

Trapp-White v Fountain

2017 NY Slip Op 00948

Decided on February 7, 2017

Appellate Division, First 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 February 7, 2017
Friedman, J.P., Andrias, Moskowitz, Kapnick, Kahn, JJ.

3044 150719/15

[*1]Violet Trapp-White, Plaintiff-Respondent,

v

Frank Fountain, et al., Defendants-Appellants.

Rivkin Radler LLP, New York (Jonathan Bruno of counsel), for appellants.

Schwartz, Ponterio & Levenson, PLLC, New York (Matthew F. Schwartz of counsel), for respondent.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered on or about October 1, 2015, which denied defendants' motion to dismiss the complaint, unanimously modified, on the law, to grant the motion to the extent the complaint seeks damages for emotional distress or mental anguish, and otherwise affirmed, without costs.

Plaintiff, who ultimately was granted a green card and permitted to return to the United States, inter alia alleges that defendants' failure to file a motion to reopen for over a year caused her to be deported and denied permission to return to the United States for almost two years, which caused her to lose her job. Accepting plaintiff's allegations as true on this motion to dismiss pursuant to CPLR 3211 they sufficiently state a legal malpractice claim (see Lapin v Greenberg, 34 AD3d 277 [1st Dept 2006]).

However plaintiff failed to state a claim for emotional distress because the damages alleged are not pecuniary in nature (see Dombrowski v Bulson, 19 NY3d 347, 351, 352 [2012]), and the pleadings fail to allege the requisite extreme and outrageous conduct (see Hyman v Schwartz, 127 AD3d 1281, 1283-1284 [3d Dept 2015]; see also Wolkstein v Morgenstern, 275 AD2d 635, 636-637 [1st Dept 2000]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 7, 2017

CLERK