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December 22, 2022

Intentional Infliction of Emotional Distress Claims Survive Early Dismissal in Child Victim Act Cases

The Second Department recently issued decisions on two Child Victim Act cases, Novak v. Sisters of the Heart of Mary1 and Eskridge v. Diocese of Brooklyn.2 The issue before the appellate court in both cases was whether the lower court properly granted the defendants’ motions under CPLR 3211(a)(7) for failure to state a cause of action in relation to the intentional infliction of emotional distress (IIED) claims asserted by each plaintiff. 

In Novak, the plaintiff, who alleged abuse by a priest while a student at the defendant’s school, asserted causes of action sounding in negligence as well as an IIED claim. Similarly, the Eskridge plaintiff sought damages for negligence and IIED based on allegations that he was sexually abused by a priest while he was a resident at a shelter operated by the defendants.

In both Novak and Eskridge, the lower courts granted the defendants’ motions to dismiss the IIED claims. The Second Department reversed the lower courts’ rulings, concluding that, in treating the allegations in the complaints as true, the plaintiffs sufficiently alleged facts supporting the necessary elements of an IIED claim: (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress. 

Novak and Eskridge pleaded that the defendants had knowledge of the alleged perpetrators’ abuse of the plaintiffs and other children and concealed that abuse. The Second Department found that type of conduct would be sufficiently outrageous and extreme in character necessary to satisfy the claim. The pleadings also set forth a causal connection between the alleged conduct and the claimed injuries. Further, the IIED causes of action were not duplicative of the negligence claims. 

The decisions in Novak and Eskridge relating to IIED claims are consistent with the case law concerning motions under CPLR 3211(a)(7) for dismissal for failure to state a cause of action in other areas of civil litigation. Courts interpret pleadings liberally with every possible inference and prefer that discovery proceed before dismissing a claim and potentially robbing a plaintiff of their day in court. 

If you have any questions regarding the content of this alert, please contact Amanda Miller, associate, at; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at; or another member of the firm’s Torts & Products Liability Defense Practice Area.


12022 NY Slip Op 06814 (2d Dep’t 2022). 
22022 NY Slip Op 06788 (2d Dep’t 2022).  

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