Majority
The Supreme Court erred in determining that the notices of claim filed by the plaintiffs were untimely, and that the action was time-barred (see General Municipal Law § 50-e [1] [a]; § 50-i [1]). The plaintiffs’ cause of action to recover damages for intentional infliction of emotional distress accrued “when all elements of the tort” could “be truthfully alleged in a complaint” (Snyder v Town Insulation, 81 NY2d 429 , 432 [1993]; see Kronos, Inc. v AVX Corp., 81 NY2d 90 , 94 [1993]; Barrell v Glen Oaks Vil. Owners, Inc., 29 AD3d 612 , 613 [2006]). One of the elements of the tort of intentional infliction of emotional distress is that the plaintiffs must suffer severe emotional distress (see Howell v New York Post Co., 81 NY2d 115 , 121 [1993]). In the case at bar, the plaintiffs could not have suffered severe emotional distress until the date of discovery of the written material which is the basis for their claim, on June 26, 2008. Thus, all of the elements of the tort of intentional infliction of emotional distress could not have been truthfully alleged in the complaint until that date. Accordingly, the notices of claim were timely filed and the action was not time-barred (see Dixon v City of New York, 76 AD3d 1043 , 1044 [2010]; Schultes v Kane, 50 AD3d 1277 [2008]; Long v Sowande, 27 AD3d 247 [2006]).
Nevertheless, the Supreme Court correctly determined that the defendant was entitled to dismissal of so much of the complaint as alleged intentional infliction of emotional distress on the ground that the plaintiffs failed to state a cause of action. Even accepting the facts alleged in the complaint as true, according the plaintiffs the benefit of every possible inference, and according to the complaint a liberal construction (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314 , 326 [2002]; Leon v Martinez, 84 NY2d 83 , 87-88 [1994]; Elisa Dreier Report
The parties’ remaining contentions either need not be reached in light of our determination or are without merit. Angiolillo, J.E, Hall, Austin and Cohen, JJ., concur. [Prior Case History: 2009 NY Slip Op 32871 (U).]
Cases cited
- Abramov v. Board of Assessors 257 AD2d 958 at 960 p. 1076
- Dougherty v. City of Rye 63 NY2d 989 at 991-992 p. 1076
- Lipman v. Vebeliunas 39 AD3d 488 at 490 p. 1076
- Fade v. Pugliani/Fade 8 AD3d 612 at 614 p. 1076
- Snyder v. Town Insulation, Inc. 81 NY2d 429 at 432 p. 1076
- Kronos, Inc. v. AVX Corp. 81 NY2d 90 at 94 p. 1076
- Howell v. New York Post Co. 81 NY2d 115 at 121 p. 1076
- Schultes v. Kane 50 AD3d 1277 p. 1076
- Goshen v. Mutual Life Insurance 98 NY2d 314 at 326 p. 1076
- Leon v. Martinez 84 NY2d 83 at 87-88 p. 1076
- Elisa Dreier Reporting Corp. v. Global NAPs Networks, Inc. 84 AD3d 122 p. 1077
- Holster v. Cohen 80 AD3d 565 at 566 p. 1077
- Murphy v. American Home Products Corp. 58 NY2d 293 at 303 p. 1077
- Stella v. County of Nassau 71 AD3d 573 at 574 p. 1077
- Seltzer v. Bayer 272 AD2d 263 at 264-265 p. 1077
- Roach v. Stern 252 AD2d 488 p. 1077
- LaDuke v. Lyons 250 AD2d 969 at 972-973 p. 1077
- Rubinstein v. New York Post Corp. 128 Misc 2d 1 p. 1077
- Cavallaro v. Pozzi 28 AD3d 1075 at 1078 p. 1077
- 164 Mulberry Street Corp. v. Columbia University 4 AD3d 49 p. 1077
- Esposito-Hilder v. SFX Broadcasting, Inc. 236 AD2d 186 at 187-188 p. 1077