DeSandolo v. United Airlines Inc.

In an action to recover damages for intentional infliction of emotional distress and gross negligence, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered June 10, 2009, as granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted

Ordered that the order is affirmed insofar as appealed from, with costs.

Accepting the allegations in the complaint as true, according the plaintiff the benefit of every favorable inference, and determining only whether the allegations fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83 , 87-88 [1994]), the complaint fails to state a cause of action against the defendant United Airlines Incorporated to recover damages for intentional infliction of emotional distress and gross negligence (see Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821 , 823-824 [1993]; Howell v New York Post Co., 81 NY2d 115 , 121 [1993]; Murphy v American Home Prods. Corp., 58 NY2d 293 , 303 [1983]).

We do not reach the plaintiff’s contentions regarding that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (2), as that branch of the defendants’ motion was not addressed by the Supreme Court in the order appealed from and, thus, remains pending and undecided (see Katz v Katz, 68 AD2d 536 , 542-543 [1979]). Rivera, J.P., Florio, Angiolillo and Belen, JJ., concur.