Intentional infliction of emotional distess is rarely alleged alongside a legal malpractice claim, but here in WASHINGTON MUTUAL BANK, Plaintiff, -against- LESTER YOUNG, RAYMOND MAR, MARILYN HARRIS, AKA MARILYN SELLER, US BANK NATIONAL ASSOCIATION,, et al,  it is, to no avail.

"In its complaint, WaMu alleges that, on February 10, 2005, Harris and Mar, owners of the Subject Premises, conveyed title thereof to Young; that, in conjunction with this transaction, Young borrowed $800,000 from WaMu, and executed and delivered a mortgage to WaMu, which was recorded in the City Register of the City of New York on May 12, 2005 (the WaMu Mortgage). WaMu claims that the deed was misplaced or lost and not recorded, and that Mar, Harris and/or Young have failed and continue to refuse to re-execute a deed. WaMu therefore seeks, pursuant to Article 15 of the Real Property Actions and Proceedings Law, a judgment declaring defendant Young as the rightful owner of the Subject Premises.

In the third-party action, Harris alleges a fraudulent lending scheme involving third-party defendants Figaro Dezil (Dezil), a loan consultant from Washington Mutual Bank, Cal Stuart (Stuart), the title closer from Union National Abstract LLC (Union), and John A. Dalley, Esq. [**3] (Dalley), counsel obtained by Stuart and/or Dezil for Harris and Young. Harris asserts that Dezil and Dalley induced her to engage in a sale of her property located at 487 Manhattan Avenue, New York, New York to Young, which would include a long-term lease and an option to repurchase, rather than a refinancing. She also alleges, inter alia, that, at the loan closing, Dalley did not have Young sign an option agreement, that [*5] Dalley received a check for $9,500, from which he paid Dezil an illegal mortgage placement fee of 1% of the mortgage proceeds, and that the mortgage payoff check (the Check) made payable to Americas Servicing Company (ASC), was given to Stuart. Harris further asserts that the Check was not delivered to ASC, but was instead fraudulently endorsed by Stuart, and deposited into an account maintained at North Fork by Beneficial Settlement Services (Beneficial), which resulted in the inappropriate retention of the loan proceeds by Dezil, Dalley and Stuart. She also complains that the acceptance and payment of the Check by North Fork Bank (North Fork) and Citibank resulted in the theft of its underlying funds."
 

"However, that branch of Dalley’ s motion for summary judgment dismissing Harris’s claim for intentional infliction of emotional distress is granted. To establish a claim for the tort of intentional infliction of emotional distress, "a plaintiff must establish … extreme and outrageous conduct; … intent to cause, or disregard of a substantial probability of causing, severe [**10] emotional distress; … a causal connection between the conduct and the injury; and … severe emotional distress" (Suarez v Bakalchuk, 66 AD3d 419, 887 N.Y.S.2d 6 [1st Dept 2009]; see also Howell v New York Pout Co., 81 N.Y.2d 115, 612 N.E.2d 699, 596 N.Y.S.2d 350 [1993]). The conduct complained of must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community" (Murphy v American Home Prods. Corp, 58 NY2d 293, 303, 448 N.E.2d 86, 461 N.Y.S.2d 232 [1983] [internal quotations marks and citation omitted]).

Here, Dalley demonstrates that his alleged conduct, consisting of, inter alia, inducing Harris to sell her house to Young, not disclosing his signatory authority in the Beneficial [*11] account to Harris, and authorizing the disbursement of the loan proceeds from the Beneficial account, while deplorable, if true, did not rise to the level of being so extreme, outrageous and beyond the bounds of human decency to constitute the requisite conduct necessary to sustain a claim for intentional infliction of emotional distress under prevailing case law (see Murphy v American Home Prods. Corp., 58 NY2d 293, 448 N.E.2d 86, 461 N.Y.S.2d 232, supra). Further, Dalley establishes that [**11] Harris failed to make any evidentiary showing that the alleged conduct caused any mental or physical symptom or injury that would indicate the existence of severe emotional distress (see Howell v New York Post Co., 81 NY2d 115, 612 N.E.2d 699, 596 N.Y.S.2d 350, supra; see also Elbogen v Esikoff, 266 AD2d 15, 697 N.Y.S.2d 614 [1st Dept 1999]).

Additionally, a cause of action for intentional infliction of emotional distress should not be entertained "where the conduct complained of falls well within the ambit of other traditional tort liability" (Fischer v Maloney, 43 NY2d 553, 558, 373 N.E.2d 1215, 402 N.Y.S.2d 991 [1978]). As noted by Dalley, the alleged conduct attributed to him by Harris falls entirely with the scope of Harris’s more traditional tort claims for, inter alia, fraud and breach of fiduciary duties.

Therefore, Dalley’s motion, in Motion Sequence No. 009, is granted only to the extent of granting summary judgment dismissing Harris’s fourteenth cause of action for intentional infliction of emotional distress as asserted against him."