MARYANN POSTIGLIONE v. WILLIAM J. BARRY

 

(NOTE: The status of this decision is Published.)

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0200-16T2


MARYANN POSTIGLIONE,

        Plaintiff-Appellant,

v.

WILLIAM J. BARRY,

        Defendant,

and

WEST CALDWELL OFFICE ASSOCIATES,
LLC, and PHILLIPS ASSET MANAGEMENT,
COMPANY, INC.,

     Defendants-Respondents.
_____________________________________

              Argued May 15, 2018 – Decided June 19, 2018

              Before Judges Yannotti and DeAlmeida.

              On appeal from Superior Court of New Jersey
              Law Division, Essex County, Docket No. L-4500-
              14.

              S.M. Chris Franzblau argued the cause for
              appellant (Franzblau Dratch, PC, attorneys;
              S.M. Chris Franzblau and Julian Wilsey, of
              counsel and on the brief; Noah Franzblau, on
              the brief).
          Michael C. Urciuoli argued the cause for
          respondent West Caldwell Office Associates,
          LLC (Law Office of Juengling & Urciuoli,
          attorneys; Michael C. Urciuoli, on the brief).

          Scott D. Samansky argued the cause for
          respondent Phillips Asset Management Company,
          Inc.   (Fishman  McIntyre   Berkeley   Levine
          Samansky, PC, attorneys; Donald M. Garson, on
          the brief).

PER CURIAM

     Plaintiff Maryann Postiglione appeals from orders entered by

the trial court, which granted summary judgment in favor of

defendants   West   Caldwell   Office   Associates,   LLC   (WCOA),   and

Phillips Asset Management Company, Inc. (Phillips). We affirm.

                                  I.

     The pertinent facts are essentially undisputed. In January

2014, plaintiff was employed by a radiologist, whose offices are

located on the first floor of a commercial office building on

Bloomfield Avenue in West Caldwell. WCOA is the owner of the

building, and Phillips manages the property. Shortly before noon,

on January 21, 2014, plaintiff arrived for work and entered the

public restroom for women, which is located on the first floor of

the building.

     Plaintiff entered a stall and lowered her pants and underwear.

Plaintiff sensed that there was another person in the restroom.

She peaked under the divider to the adjacent stall and saw large


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black boots "that were not characteristic of female shoes in size

or style." Plaintiff stood up, looked to her right where the toilet

paper dispenser was located, and noticed "a large white male hand

holding a camera phone under the wall of the bathroom stall that

she was using." The camera was pointed at her, and she "quickly

pulled up her underwear and pants and exited the bathroom."

       Plaintiff exited the restroom, went to her employer's office,

and    reported    the   incident.      Two     of   plaintiff's    coworkers

immediately went and waited outside of the women's public restroom

and, shortly thereafter, a man wearing large black boots exited

the restroom. The coworkers confronted the man before police

arrived at the scene. The man, defendant William J. Barry, was

arrested    and   charged     with   criminal   trespass   and    invasion    of

privacy.1

       On June 25, 2014, plaintiff filed a complaint in the trial

court against Barry, WCOA, and Phillips, asserting claims of

negligence,       negligent     infliction      of    emotional     distress,

intentional infliction of emotional distress, and invasion of

privacy. WCOA and Phillips filed answers denying liability. Barry

did not answer the complaint and default was entered against him.




1
    Barry is not involved in this appeal.

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     In July 2015, Phillips filed a motion for summary judgment

asserting that plaintiff failed to present sufficient evidence to

show she suffered emotional distress injuries sufficient to meet

the threshold for establishing her negligence claims. WCOA joined

in Phillips's motion and also sought the dismissal of plaintiff's

claims against WCOA.

     On August 21, 2015, the judge     entered an order denying

defendants' motions for summary judgment. Thereafter, Phillips

filed a motion for reconsideration, arguing again that plaintiff

failed to prove injuries sufficient to establish her negligence

claims.

     On November 20, 2015, the judge heard oral argument on the

motion. The judge reconsidered his earlier decision, and granted

summary judgment in favor of Phillips. The judge memorialized his

decision in an order dated November 30, 2015. On January 12, 2016,

the judge filed an order granting summary judgment in favor of

WCOA. This appeal followed.

                               II.

     On appeal, plaintiff argues that the trial court erred by

granting summary judgment in favor of WCOA and Phillips. She

contends the court erred by determining she had not established

sufficiently severe emotional distress injuries for her negligence



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claims against defendants. She contends that the sufficiency of

her emotional distress injuries is a question of fact for a jury.

     Summary judgment must be granted when there is no genuine

issue of material fact and the moving party is entitled to judgment

as a matter of law. R. 4:46-2(c). "An issue of fact is genuine

only if, considering the burden of persuasion at trial, the

evidence submitted by the parties on the motion, together with all

legitimate inferences therefrom favoring the non-moving party,

would require submission of the issue to the trier of fact." Ibid.

     The non-moving party may not defeat a motion for summary

judgment "merely by pointing to any fact in dispute." Brill v.

Guardian Life Ins. Co. of Am., 
142 N.J. 520, 529 (1995) (emphasis

in original). "If there exists a single, unavoidable resolution

of the alleged disputed issue of fact, that issue should be

considered   insufficient   to   constitute   a   'genuine'   issue    of

material fact for purposes of Rule 4:46-2." Id. at 540 (citing

Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 250 (1986)).

     "On appeal, we accord no special deference to a trial judge's

assessment of the documentary record, and instead review the

summary judgment ruling de novo as a question of law." Davidovich

v. Israel Ice Skating Fed'n, 
446 N.J. Super. 127, 159 (App. Div.

2016) (citations omitted). In determining whether the trial court

erred by granting summary judgment, we apply the same standard

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that the trial court must apply in ruling on the motion. Conley

v. Guerrero, 
228 N.J. 339, 346 (2017) (citing Templo Fuente De

Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 
224 N.J.
 189, 199 (2016)).

     In   this   case,   plaintiff   asserted   a   claim   of   negligent

infliction of emotional distress against WCOA and Phillips. "A

claim of direct, negligent infliction of emotional distress," can

exist where the plaintiff claims proximately-caused damages as a

result of the breach of a duty owed by the defendant. Lascurain

v. City of Newark, 
349 N.J. Super. 251, 277 (App. Div. 2002). In

order to prevail on the claim, the plaintiff must establish

"genuine and substantial emotional distress." Ibid.

     "The severity of the emotional distress raises both questions

of law and fact. Thus, the court decides whether as a matter of

law such emotional distress can be found, and the jury decides

whether it has in fact been proved." Id. at 279 (quoting Buckley

v. Trenton Sav. Fund Soc., 
111 N.J. 355, 367 (1988)). This court

has stated that "[i]n order to be actionable, the claimed emotional

distress must be sufficiently substantial to result in physical

illness or serious psychological sequelae." Aly v. Garcia, 
333 N.J. Super. 195, 204 (App. Div. 2000).

     Our opinion in Lascurain is instructive. In that case, the

plaintiff brought suit against the owner of a cemetery, where her

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father was buried, asserting a claim of grave desecration and

infliction of emotional distress. Id. at 275. The court noted that

the plaintiff had to show, among other things, that she suffered

emotional distress "so severe that no reasonable [person] could

be expected to endure it." Id. at 277 (quoting Buckley, 
111 N.J.

at 366).

     In Lascurain, the plaintiff claimed that she (1) became

nauseous and hysterical when she visited the cemetery and saw the

neglect; (2) later became depressed and had nightmares; and (3)

no longer enjoys her activities as she used to. Id. at 280.

However, the plaintiff testified at her deposition that she still

played bingo, was a member of a "friendship club," and tries to

keep busy. Ibid. She said she stays active, occasionally has her

hair done, and at times eats out. Ibid. She conceded that she

essentially does the "same sort of things" she did before she

visited the cemetery. Ibid.

     We held that while the plaintiff understandably suffered

emotionally from the neglect of the cemetery, her distress did not

rise to the level required to support a claim for emotional

distress. Id. at 280. We stated that the plaintiff had not shown

the sort of "dramatic impact" on her daily activities or her

ability to function each day that is generally required. Ibid. We



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observed that the plaintiff had not sought "regular psychiatric

counseling." Ibid.

      Our decision in Soliman v. Kushner Cos., Inc., 
433 N.J. Super.
 153   (App.    Div.   2013),   also   is      instructive.    In   Soliman,   the

defendant, the manager of a commercial office building, installed

security cameras in smoke detectors that were located in the men's

and women's [restrooms] in the building. Id. at 159-60. The cameras

were "positioned to monitor or focus only on the 'common area' of

the [restrooms], where the washbasins [were] located" as a response

to reports of vandalism in the restrooms. Ibid.

      Upon the discovery of these cameras, employees who worked in

the building filed claims of intentional and negligent infliction

of emotional distress, and invasion of privacy. Id. at 160. The

defendant filed a motion for summary judgment, and one of the

plaintiffs,      Patricia     Soliman,       submitted   a   certification      in

opposition of the motion. Id. at 164.

      Soliman asserted that she had met with a physician who "opined

that [she] did not trust restrooms and as a consequence suffer[ed]

from anxiety." Id. at 165. The physician diagnosed Soliman as

suffering from "Specific Phobia to Public Restrooms," and, because

she avoided using the restroom at work and avoided eating and

drinking during work hours, Soliman developed distention of the

bladder,      hypoglycemia,    and    anxiety.     Ibid.     Soliman   also   had

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"difficulty with focusing." Ibid. However, despite the physician's

evaluation and diagnosis, Soliman decided not to seek psychiatric

treatment   and   "hoped   that    her    anxieties    and    fear   of    public

bathrooms would subside after she left her employment." Ibid.

     The trial court granted the defendant's motion for summary

judgment and dismissed Soliman's cause of action as a matter of

law. Id. at 161. We affirmed the trial court's ruling, holding

that "the evidence described at length"               by Soliman did "not

constitute th[e] type of trauma" required to prove she had suffered

sufficiently substantial emotional distress. Id. at 178.

                                     III.

     In this case, plaintiff claims she is "suffering from severe

anxiety and depression, including lack of sleep, as a result of

the incident." Plaintiff met with a psychologist, Dr. Robert T.

Latimer on June 5, 2014. She met Dr. Latimer once more on December

8, 2014.

     In    his   report,   Dr.    Latimer   detailed    his    meetings       with

plaintiff, during which she explained: "I get scared when I am

alone. If I see a tall man I feel scared. I try not to let things

get to me. . . . I start thinking about what happened. I have

become worried of this happening again."

     Plaintiff also told Dr. Latimer: "I became suspicious of

something like this happening again. I felt violated and angry.

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Why would it happen to me? . . . I don't feel safe anymore. I keep

thinking what if he had grabbed me or raped me?" Plaintiff also

detailed how the incident has made it difficult for her to sleep.

     Dr. Latimer diagnosed plaintiff as suffering from "Acute

Stress Disorder," with "some symptoms of [Post-Traumatic Stress

Disorder]" and "some symptoms of Adjustment Disorder." The doctor

also stated that "in [his] opinion, [plaintiff] is suffering from

Residual Anxiety and Depression" as a result of the incident of

January 21, 2014.

     At plaintiff's May 18, 2015 deposition, she testified that

she had not sought any further psychiatric treatment after her

time with Dr. Latimer, nor did she intend to seek treatment in the

future. Plaintiff has not been prescribed any medications for her

alleged   injuries   and,   although   Dr.   Latimer   recommended   that

plaintiff schedule regular therapy sessions, plaintiff "decided

not to do that." Plaintiff further testified that she went about

her "usual routine" the day of the incident (a Tuesday), worked

her normal schedule that day, and worked her normal schedule the

rest of the week without missing any time from work.

     As of the date of her deposition, approximately one year and

five months after the January 21, 2014 incident, plaintiff had

gone on two vacations, one to California and the other to Florida.

The California vacation took place approximately six months after

                                  10                             A-0200-16T2
the incident, in July 2014, and included a trip in which plaintiff

camped in Yosemite National Park. The trip to Florida included a

stay at plaintiff's father's house. Plaintiff also made two trips

to New York after the incident, once to have dinner and once to

see a baseball game. While at the game, plaintiff used the public

restroom with her friend.

      Plaintiff testified that she still uses public restrooms and

does so on her own. When asked if she had changed her daily routine

in any way as a result of the incident, other than being more

cautious when she uses the bathroom, plaintiff replied "No." When

asked if she has "stopped doing any activities" because of the

incident, plaintiff responded "No."

      Plaintiff   also   testified    that     she   attends   a   gym,   which

includes a women's locker room, but the locker room is not locked.

Although plaintiff claims that "anxiety is always in the back of

[her] head," plaintiff still gets changed in the gym's bathroom

and locker room.

      Here, plaintiff's distress is understandable; however, it

fails to rise to the level required for a claim of negligent

infliction of emotional distress. As in Lascurain, plaintiff has

not   sought   regular   psychiatric      or   psychological       counseling.

Moreover, the incident in the restroom at her workplace did not



                                     11                                A-0200-16T2
have a significant effect upon plaintiff's ability to engage in

her usual activities.

      In addition, the emotional distress that plaintiff suffers

is less severe and less injurious than the emotional distress

suffered by the unsuccessful plaintiff in Soliman. As we have

explained, plaintiff worked the full day and week of the incident.

She continued working at the radiologist's office in the building,

and   there   is   no   evidence     of        any     physical   manifestation       of

plaintiff's injuries, as there was in Soliman.

      Plaintiff further testified that she has anxiety when using

public restrooms but has never taken medication for her anxiety.

She decided not to schedule regular therapy sessions despite Dr.

Latimer's recommendation that she do so. Moreover, plaintiff has

not altered her daily routine or stopped participating in any life

activities as a result of the incident that led to this lawsuit.

Plaintiff continues to use public restrooms and uses the bathroom

and locker room at her gym.

      We   have    considered       the        other     arguments    presented       by

plaintiff.    Those     arguments    lack        sufficient       merit   to   warrant

discussion. R. 2:11-3(e)(1)(E).

      We conclude the trial court correctly found as a matter of

law that plaintiff failed to show that her emotional distress was

of the severity required to support a claim against defendants for

                                          12                                   A-0200-16T2
negligent   infliction   of   emotional   distress.   The   trial     court

correctly determined that WCOA and Phillips were entitled to

judgment.

    Affirmed.




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