## Facts

- Oak Park Marina, Inc. operated a marina in North Rose, New York, with separate men’s and women’s restrooms used by patrons and guests.
- The restrooms included changing areas, showers, and toilets.
- In 1993, the marina installed a video surveillance camera in each restroom, allegedly to deter vandalism.
- A female patron alleged that defendants videotaped 150–200 women in various stages of undress without their knowledge or consent.
- The patron alleged the recordings were viewed by defendants and others and were displayed to others for purposes of trade.
- The amended complaint asserted claims for negligent infliction of emotional distress, reckless infliction of emotional distress, sex discrimination under Executive Law § 296, violation of Civil Rights Law § 51, and breach of contract.

## Issues

1. Whether the complaint stated a claim for negligent infliction of emotional distress based on restroom surveillance and an alleged duty to protect patrons’ privacy.
2. Whether New York recognizes a cause of action for reckless infliction of emotional distress on allegations of extreme and outrageous restroom surveillance.
3. Whether the reckless infliction of emotional distress and Civil Rights Law § 51 claims were time-barred based on when they accrued.
4. Whether the complaint stated a legally cognizable breach-of-contract claim based on an alleged contractual obligation to protect patrons from emotional harm.

## Decision

- The appellate court affirmed denial of dismissal of the negligent infliction of emotional distress claim.
- The court held that New York recognizes intentional or reckless infliction of emotional distress and that the pleaded conduct sufficed at the pleading stage; it affirmed denial of dismissal of that claim.
- The court held the reckless infliction of emotional distress claim was not time-barred because limitations ran from when plaintiff became aware of the videotaping.
- The court affirmed denial of dismissal of the Civil Rights Law § 51 claim as time-barred, holding accrual occurred when the recordings were displayed to third parties for trade purposes.
- The court reversed as to breach of contract and dismissed that cause of action, concluding the alleged agreement did not impose a contractual duty to protect against emotional distress.
- The dismissal of the Executive Law § 296 sex-discrimination claim remained undisturbed.

## Legal Principles

- A negligence-based emotional-distress claim may be pleaded where a defendant breaches a duty of reasonable care concerning patrons’ restroom privacy, including duties grounded in statutory protections.
- New York permits recovery for intentional or reckless infliction of emotional distress where conduct is sufficiently extreme and outrageous; covert restroom recording and dissemination may meet that standard at the pleading stage.
- For reckless infliction of emotional distress based on surreptitious recording, accrual may run from the plaintiff’s awareness of the videotaping rather than the date of recording.
- A Civil Rights Law § 51 claim accrues upon the use or display of a person’s image for advertising or trade purposes, not merely upon the creation of a recording.
- Allegations that primarily describe a tort duty and injury do not become actionable in contract absent a contractual undertaking to protect against the claimed emotional harm.

## Conclusion

The court allowed claims based on covert restroom surveillance to proceed under negligent and reckless infliction of emotional distress and under Civil Rights Law § 51, rejecting statute-of-limitations challenges tied solely to the time of recording, but it dismissed the breach-of-contract theory because no contract duty to prevent emotional distress was plausibly alleged.


Dana v. Oak Park Marina, Inc., 230 A.D.2d 204, 660 N.Y.S.2d 906 (App. Div. 4th Dep’t 1997)