This case, which is still in the pre-answer stage of the proceedings, involves admittedly false letters sent by defendant Professor Francis J. Flynn to various restaurants in New York City, accusing them of causing his wife to suffer food poisoning while celebrating their anniversary dinner, in order to determine how the particular restaurant would respond to a consumer complaint. The action has been the subject of an unreported Memorandum decision by Justice Ira Gammerman, (Josephine v. Columbia University, NYLJ, Dec. 19, 2002 at 22, col. 5) as well as an opinion by the First Department, affirming that decision (except with respect to the claims for punitive damages) (4 AD3d 49 [2004][Tom, J.]); therefore, it is not necessary to restate the facts.

I authorized plaintiffs to submit a letter, with a copy of a Proposed Second Amended Complaint (PSAC) , and the defendants to submit opposition papers directly to Part 60. These papers are deemed a Motion for Leave to File a Second Amended Complaint and will be filed as such by the Clerk of the Court.^[FN1] This PSAC contains five causes of action: The 1st — Intentional Infliction of Emotional Distress has been amended to reduce the number of plaintiffs from 82 to 50, which includes only the individual restaurant owners who actually received the letters. There are four new causes of action pleaded: 2nd "Negligent Misrepresentation"; 3rd— [*2]Fraudulent Misrepresentation; 4th — Negligence; and 5th — Violation of Public Health Law 2442.

Defendants oppose the filing of the Proposed Second Amended Complaint on various grounds, and contend that if I sustain any of these proposed claims, the emotional distress claim must be dismissed as duplicative. I turn to the various causes of action.

1. Intentional Infliction of Emotional Distress (1st Cause of Action)

The original amended complaint contained a cause of action alleging intentional infliction of emotional distress, however, as Judge Gammerman noted, it made "no distinction among the restaurant, restaurant owner, and employee plaintiffs." Concluding that "it is impossible to determine from the face of the amended complaint which individual plaintiffs actually received the letters on behalf of the restaurants" he dismissed all the emotional distress claims except those of plaintiffs Baker and Valenza, who had submitted affidavits stating, inter alia, that they had actually received the letter. On appeal, the First Department noted that Judge Gammerman dismissed those claims where there had been a failure "to establish which individuals, other than Baker and Valenza, actually received the letters". The Court sustained Judge Gammerman's decision in which he upheld "concededly general allegations" at the pre-answer stage given that "the record and the pleadings indicate[d] an adequate factual basis for potential findings that the conduct was sufficiently outrageous so as to support the [emotional distress] claim."

By the Proposed Second Amended Complaint, this defect as to specificity concerning "which individuals...actually received the letters", identified by Judge Gammerman and specifically referred to by the Appellate Division, has been corrected. The PSAC now alleges that the named individual owner plaintiffs "did personally receive the letters in question" (¶ 12). However, the defendants contend that further affidavits are required to support the proposed amendment, citing Non-Linear trading v. Braddis, 243 AD2 107, 116 [1st Dept., 1998] and Nab-Tern Constructors v. City of New York, 123 AD2d 571 [1st Dept., 1986]. Unlike Non-Linear or Nab-Tern, both the motion court and the Appellate Division, have already determined there was an adequate basis to plead this emotional distress cause of action. Indeed, in Nab-Term, the Court noted that in its prior decision in that case, it had found the proposed amendment "insufficient." And in Non-Linear, neither the motion court, nor the appeals court had determined that the pleadings contained "an adequate factual basis" for the proposed amendment, rather, the First Department held that the "proposed amended complaint is lacking in specificity" and failed to state a cause of action. It would seem, therefore, that rather than deny this motion with permission to renew following the completion of discovery, as was done in Nab-Tern, the sensible procedure is to permit this pleading , since it is clear that this is not a "[s]pecious amendment" (id. at 572). Obviously, following discovery, defendant may make any further motions deemed to be appropriate.

2. Negligent Misrepresentation (2nd Cause of action) and Fraudulent [*3]Misrepresentation (3rd Cause of Action).

The original amended complaint did not contain a cause of action alleging negligent misrepresentation, as did the complaint in the related and voluntarily discontinued action, 164 Mulberry Street, Corp.(No.116289-2002) or alleging fraudulent misrepresentation. However, in his decision, Judge Gammerman stated that "in order to save time and judicial resources...I note that although the plaintiffs have not asserted a cause of action for either negligent misrepresentation....or for fraudulent misrepresentation, it would seem that the factual allegations made in their complaint may well form the basis for one or both causes of action". The First Department stated that it "agree[d] with the motion court...that causes of action sounding in negligent and fraudulent misrepresentation appeared to be supported by the pleadings and related documentation in the Chez Josephine action." The Court added that "the facts and allegations thus far presented appear to make out these claims". These claims have now been pleaded, and it seems to me in light of Judge Gammerman's observation, seconded by the Appellate Division, that it would be unwise to dismiss these two claims at this juncture. Here too, the defendants contend that affidavits are required; however, for the reasons already stated, this argument is rejected. Again, there will be opportunity for further motions.

3. Negligence (4th Cause of Action).

This cause of action for negligence alleges that the defendants (although not so specified, it obviously refers to the Columbia defendants) "owed a duty to all subjects of research and experimentation that all such research projects be appropriately reviewed for safety, appropriateness, ethics, and impact." It further alleges that the defendants "fail[ed] to have in place the necessary protocols, guidelines, and review boards to ensure that the research would not cause harm". Notwithstanding the plaintiffs' contention that the claim is one of respondent superior, this is clearly a cause of action alleging negligent supervision, i.e., the failure of the Columbia defendants, Professor Flynn's employers, to properly supervise his research in order to prevent injury to its subjects. Essential to such a claim is an allegation that the employer "knew or should have known" (e.g., Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 AD2d 159 [2nd Dept., 1991]), that the employee, Professor Flynn, was likely to conduct a study of this nature, causing the harm claimed, without obtaining prior authorization. The absence of such allegation is fatal to this cause of action, which is therefore dismissed.

4. Violation of Public Health Law, Section 2442 (5th Cause of Action).

This cause of action alleges that the "owner plaintiffs were unlawfully subjected to human research and experimentation" without obtaining the voluntary informed consent required by section 2442 of the Public Health Law. This is an unsuccessful although ingenious attempt to bring these events within the purview of Article 24-A of the Public Health Law, which is entitled the "Protection of Human Subjects", because this statute pertains to human research occurring in institutions or agencies under the jurisdiction of the Commissioner of Health of the State of New York. Since it has not been alleged that the Columbia University or the Business School is [*4]such an agency or institution, this claim is insufficient as a matter of law. Moreover, Professor Flynn does not come within the statutory definition of a "researcher", which would trigger the safeguards of Article 24-A.

Adopted in 1975, Article 24-A was intended to alleviate the situation where there was no existing New York "law prohibiting involuntary human experimentation." (Memorandum of Member of Assembly Hevesi, 1975, NY Legis Ann., at 274). Mr. Hevesi further explained that while "Federal regulations, promulgated since the occurrence of [incidents such as where geriatric patients were injected with live cancer virus; and experiments by the Willowbrook State Hospital on mentally retarded children], cover those situations where federal funds are involved. This bill covers those remaining situations where federal regulations do not apply."

As a result, the Legislature created a statutory scheme giving the "Commissioner of Health the mandate to oversee and power to regulate the conduct of human subject research in this State not otherwise in compliance with and/or subject to Federal regulations providing for the protection of human subjects" (T.D. v. New York State Office of Mental Health, 228 AD2d 95, 104 [1st Dept., 1996], app. dsmd. 89 NY2d 1029 [1997], lv. gtd. 90 NY2d 805, app. dsmd. 91 NY2 d860). It requires the creation of a "human research review committee", whose members are required to be "approved by the commissioner" ^[FN2] of the Department of Health. It was the requirement of such committees, under the commissioner's jurisdiction, which constituted the statute's "greatest protection" (Bill Jacket to Laws of 1975 [c. 450], letter from Donald A. MacHarg, Counsel, State of New York Department of Health to Hon. Judah Gribetz, Counsel to the Governor, dated July 7, 1975) Thus, as the First Department held, "The Department of Health...was specifically charged with the responsibility to oversee all human subject research...." (id. at 105). A requirement of this statute is that a "researcher"^[FN3], i.e., a licensed professional or any other person found competent by the committee, submit the proposed human research project for review by such committee.

Notably, this statute only encompasses research within the purview of the State Health Commissioner, and it is clear that the defendants' conduct is not covered. Moreover, the definition of a researcher does not include, nor can it reasonably be read to include, defendant Flynn. Therefore, the 5th claim fails to state of cause of action (cf. Hecht v. Kaplan, 221 AD2d [*5]100 [2nd Dept., 1996]), and is dismissed.

Remaining is the question whether sustaining the negligent and fraudulent misrepresentation counts, requires dismissal of the intentional infliction of emotional distress claim. As noted by the Appellate Division on the appeal in this case, "If another traditional tort claim is pleaded and sustained, there is authority that the tort of intentional infliction of emotional distress merely duplicates the traditional tort and must be dismissed" (4 AD3d at 58). This refers to Demas v. Levitsky, 291 AD2d 653 (3rd Dept.), lv. dsmd., 98 NY2d 728 (2002), where the Third Department dismissed an intentional infliction of emotional distress claim, which fell "squarely with the scope of plaintiff's defamation claim". Here, however, the emotional distress claim and the claims for negligent and fraudulent misrepresentation do not seek the same damages: in the former, emotional damages are sought; in the latter, damages are sought for the destruction of "substantial and valuable food inventories and in taking other actions in response to the false allegations of food poisoning". Therefore, dismissal of the intentional infliction of emotional distress claim at this juncture would be premature.

Accordingly, for the foregoing reasons, it is:

(1) ORDERED that the motion for leave to file the Proposed Second Amended Complaint is granted only as to the first cause of action ("intentional infliction of emotional distress"), the second cause of action ("negligent misrepresentation"), and the third cause of action ("fraudulent misrepresentation"); and it is further

(2) ORDERED that the motion for leave to file the Propose Second Amended Complaint is denied as to the fourth cause of action ("negligence") and the fifth cause of action ("violation of Public Health Law, section 2442).

ENTER:

__________________________ J.S.C.