By notice of motion filed on November 7, 2011, under motion sequence number seven, defendants Vincent M. Pacienza, M.D. and Manhasset Cardiovascular, P.C. jointly move pursuant to CPLR 2221(d) for an order granting permission to reargue their opposition to plaintiff Shari Hughes' (hereafter Hughes) motion for summary judgment granting liability in her favor on the fourth cause of action for intentional infliction of emotional distress. Hughes opposes the motion.

BACKGROUND

On August 19, 2008, Ellen Moreno, Deborah Schubert, Vanessa T. Pero, M.D., Irina Khaimova, and Karina Khaimova jointly commenced their action by filing a summons and complaint with the Kings County Clerk's office under index number 23739/08. The defendants joined issue by answer dated September 8, 2008.

On August 20, 2008, Hughes commenced an action by filing a summons and verified complaint with the Nassau County Clerk's office under index number 11424/09. The defendants joined issue by verified answer dated September 4, 2008. On April 21, 2009, the two complaints were consolidated for joint trial in Kings County Supreme Court under the instant common index number 23739/08.

Hughes' complaint alleges thirty-eight allegations of fact in support of five causes of action. The first two causes of action claim violations of Executive Law Section 296(1): the first for sexual harassment by the creation of a hostile work environment; and the second for intentional discrimination and constructive discharge. The third cause of action is for violation of the right to privacy. The fourth cause of action is for intentional infliction of emotional distress. The fifth is for prima facie tort.

By decision and order dated September 22, 2011, Hughes was granted summary judgment in her favor on liability on the first, second and fourth causes of action.

Hughes' complaint alleges the following salient facts. In December of 2007, she began working as a medical office clerk at MCPC's cardiology practice located at 75 Plandrome Road, Manhasset, New York. Sometime in June of 2008, Pacienza placed an air purifier containing a hidden surveillance camera in the employee bathroom of the work site positioned five feet away from and at the same height of the toilet seat. Hughes used this bathroom at least twice a day. On June 13, 2008, Hughes learned of Pacienza's conduct and immediately resigned.

MOTION PAPERS

Defendants' motion papers consist of a notice of motion, an attorney's affirmation and one exhibit labeled A consisting of a copy of this court's prior order dated September 22, 2011.

Hughes opposes the motion with an affirmation of counsel and one exhibit labeled A. Exhibit A consists of an excerpt of the trial transcript of the jury charge in Sawicka v. Catena, 79 AD3d 848 (2d 2010), where the Appellate Division, Second Department affirmed an award of [*2]summary judgment on liability on causes of action arising out of similar conduct to that of the instant matter.

Defendants have replied with an affirmation of counsel.

LAW AND APPLICATION

CPLR §2221(d) provides: A motion for leave to reargue:

1. shall be identified specifically as such;

2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and

3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals.

"Motions for re-argument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision" (Barnett v. Smith, 64 AD3d 669, 670-671 [2d 2009] citing, E.W. Howell Co., Inc. v. S.A.F. La Sala Corp., 36 AD3d 653 at 654 [2d 2007]; see also, Beverage Marketing USA, Inc. v. South Beach Beverage Co., Inc., 58 AD3d 657 [2d 2009]).

In this instant case, the court must deny defendants' motion. The defendants annexed the court's decision and order dated September 22, 2011, which, among other things, granted Hughes' motion for summary judgment in her favor on the fourth cause of action for intentional infliction of emotional distress. The defendants, however, failed to annex the complete set of motion papers upon which the court based its decision. "The Court does not retain the papers following the disposition of an application and should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions." (Lower Main St. v. Thomas Re & Partners, 2005 WL 6760926, NYLJ, April 5, 2005, at 19, col 3, [Sup. Ct., Nassau County 2005], citing Sheedy v. Pataki, 236 AD2d 92, 97 [3d 1997]). "The movants are responsible for filing a complete record upon which a court can decide an application (see CPLR Rule 3212[b])." (All American Moving and Storage Inc v. Andrews, 31 Misc 3d 1214[A][Sup. Ct., Bronx County 2011]). Therefore, the motion may be denied on procedural grounds.

Nevertheless, it is noted that defendants' motion for leave to reargue is premised on Hughes' failure to submit medical evidence in support of the claim of intentional infliction of emotional distress. Defendants maintain that by not doing so she could not and did not make out a prima facie showing of entitlement to summary judgment on that claim.

The tort of intentional infliction of emotional distress requires the following four elements: extreme and outrageous conduct; intent to cause or disregard of a substantial probability of causing severe emotional distress; a causal connection between the conduct and injury; and severe emotional distress (Howell v New York Post Co., Inc., 81 NY2d 115 [1993]). Liability arises only when defendant's conduct is extreme and outrageous, measured by the reasonable bounds of decency tolerated by decent society (Marmelstein v Kehillat New Hempstead, 11 NY3d 15 [2008]). Whether the conduct complained of is outrageous is, in the first instance, for the court (Cavallaro v. Pozzi, 28 AD3d 1075 [4d 2006]).

In any event, the court notes that medical proof of emotional distress is an element of a plaintiff's [*3]claim only when the outrageousness of defendant's conduct is actually in dispute. "Part of what we mean by saying that the defendant's conduct was outrageous is that severe distress is likely to follow. Consequently, when the defendant's conduct is extreme enough, that fact tends to prove severe distress [M]edical testimony is not ordinarily required to demonstrate either the severity of the distress or its cause." Dan B. Dobbs, Paul T. Hayden and Ellen M. Bublick, The Law of Torts [2d ed.] §388. "While evidence of a specific medical diagnosis or course of treatment may be relevant to the issue of damages, it is not essential to the prosecution of an inherently genuine claim." (Plunkett v. NYU Downtown Hospital, 21 AD3d 1022, 1023 [2d 2005]).

For example, in Murray v. 600 East 21st Street LLC, 18 Misc 3d 762 [Sup. Ct., Kings County, 2007], rev'd on other grounds, 55 AD3d 805 [2d 2008], a plaintiff tenant alleged that her defendant landlord invaded her long time family home and illegally evicted her by removing or destroying all of her personal property. The court held that plaintiff's failure to seek medical or psychological treatment was not fatal to her intentional infliction of emotional distress claim: "Clearly, if these claims are established, the act is so serious as to strongly support an inference of severe emotional distress simply by virtue of the occurrence of the act." (Id. at766).

In this case, the court's prior decision and order already established that the installation of a secret camera in the bathroom which Hughes frequented was extreme and outrageous as a matter of law. Further, it is noted that Pacienza was convicted criminally of this act. That Hughes immediately resigned following her discovery of the device is sufficient proof that her distress was real and that Pacienza's conduct was its cause. Therefore, Hughes's failure to submit medical evidence of distress would not preclude summary judgment in her favor. The court sees no error of fact or law.

Defendants' motion for leave to reargue their opposition to Hughes' summary judgment motion which granted liability in her favor on the fourth cause of action for intentional infliction of emotional distress is denied.

The foregoing constitutes the decision and order of this court.

Enter:________________________

J.S.C.

Enter Forthwith:________________________

J.S.C.