Friedman v. Eshel Hotel

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ROBERT FRIEDMAN,

Plaintiff, MEMORANDUM & ORDER

22-CV-980(EK)(JRC)

-against-

ESHEL HOTEL,

Defendant.

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ERIC KOMITEE, United States District Judge:

Plaintiff Robert Friedman, proceeding pro se and in

forma pauperis, filed this instant action in February 2022

against Eshel Hotel.1 The complaint alleges that the Eshel Hotel

is liable for the intentional infliction of emotional distress

(“IIED”) because its manager told Friedman “[he was] not allowed

to enter or stay in the hotel” after he “ask[ed] to stay for the

night.” Compl. 5, ECF No. 1.2 Friedman asserts that Defendant’s

conduct was based on his disability (Tourette Syndrome). Id.

Plaintiff has invoked the diversity jurisdiction of this Court

pursuant to 28 U.S.C. § 1332 and seeks $200,000 in damages. Id.3

1 Magistrate Judge James Cho granted Friedman’s request to proceed in

forma pauperis on February 24, 2022. ECF No. 4.

2 Page numbers in citations to record documents refer to ECF pagination.

3 Friedman is a citizen of Ohio; Eshel Hotel is a citizen of New York.

Compl. 4–5.

For the reasons set forth below, the complaint is

dismissed under 28 U.S.C. § 1915 because it fails to state a

claim on which relief may be granted.

I. Legal Standard

At the pleading stage, “all well-pleaded,

nonconclusory factual allegations” in the complaint are assumed

to be true. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111,

124 (2d Cir. 2010).4 Pro se complaints are held to less

stringent standards than pleadings drafted by attorneys, and the

Court will read a pro se complaint liberally and interpret it as

raising the strongest arguments it suggests. Erickson v.

Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed

Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008).

Still, a pro se plaintiff is not exempt from

“compliance with relevant rules of procedural and substantive

law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Thus, a

pro se complaint must plead sufficient facts to “state a claim

to relief that is plausible on its face.” Williams v. Bronx

Cnty. Child Support Customer Serv. Unit, 741 F. App’x 854, 855

(2d Cir. 2018) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). A claim is plausible “when the plaintiff

4 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63

(2d Cir. 2011). Although factual allegations in the complaint

are assumed to be true, this tenet is “inapplicable to legal

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Under 28 U.S.C. § 1915(e)(2)(B), a district court must

dismiss an in forma pauperis action that “(i) is frivolous or

malicious; (ii) fails to state a claim on which relief may be

granted; or (iii) seeks monetary relief against a defendant who

is immune from such relief.”

II. Discussion

The intentional infliction of emotional distress is a

state-law tort. “A federal court sitting in diversity applies

the choice-of-law rules of the forum state.” See Kinsey v. N.Y.

Times Co., 991 F.3d 171, 176 (2d Cir. 2021). Thus, New York’s

choice-of-law rules apply. In tort cases, New York “applies the

law of the state with the most significant interest in the

litigation.” Id. Given that the incident leading to the

litigation occurred in New York and the defendants are citizens

of New York, New York tort law applies.5

5 In any event, there is no conflict between the IIED laws of New York

and Ohio, Friedman’s state of citizenship. See Hayward v. Cleveland Clinic

Found., 759 F.3d 601, 618–19 (6th Cir. 2014) (“Under Ohio law, to prevail on

Under New York law, “a plaintiff claiming intentional

infliction of emotional distress must plead four elements: (1)

extreme and outrageous conduct, (2) intent to cause severe

emotional distress, (3) a causal connection between the conduct

and the injury, and (4) severe emotional distress.” Friedman v.

Self Help Cmty. Servs., Inc., 647 F. App’x 44, 47 (2d Cir.

2016).

Even read liberally, the complaint does not plausibly

allege these elements. The standard for stating a valid claim

of intentional infliction of emotional distress is “rigorous,

and difficult to satisfy.” Howell v. N.Y. Post Co., 612 N.E.2d

699, 702 (N.Y. 1993); see also Ibraheem v. Wackenhut Servs.,

Inc., 29 F. Supp. 3d 196, 215 (E.D.N.Y. 2014) (“In New York, the

tort of IIED is extremely disfavored.”). To succeed, a

plaintiff must show that the defendant’s actions were “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.”

Howell, 612 N.E.2d at 702 (quoting Restatement (Second) of Torts

a claim for intentional infliction of emotional distress, a plaintiff must

establish the following four elements: 1) that the actor either intended to

cause emotional distress or knew or should have known that actions taken

would result in serious emotional distress to the plaintiff; 2) that the

actor’s conduct was so extreme and outrageous as to go beyond all possible

bounds of decency and was such that it can be considered as utterly

intolerable in a civilized community; 3) that the actor’s actions were the

proximate cause of plaintiff’s psychic injury; and 4) that the mental anguish

suffered by plaintiff is serious and of a nature that no reasonable man could

be expected to endure it.”).

§ 46 cmt. d (1965)). Indeed, “[a]ctions likely to be considered

reprehensible by most people are not sufficient.” DiRuzza v.

Lanza, 685 F. App’x 34, 37 (2d Cir. 2017) (applying New York

law); see also Chanko v. Am. Broad. Cos., 49 N.E.3d 1171, 1179

(N.Y. 2016) (concluding that a broadcaster’s airing of recording

of a patient’s last moments of life “was not so extreme and

outrageous” even though the conduct “would likely be considered

reprehensible by most people”). Whether a plaintiff’s

allegations “may reasonably be regarded as so extreme and

outrageous as to permit recovery is a matter for the court to

determine in the first instance.” Stuto v. Fleishman, 164 F.3d

820, 827 (2d Cir. 1999); see also Howell, 612 N.E.2d at 702 (“In

practice, courts have tended to focus on the outrageousness

element, the one most susceptible to determination as a matter

of law.”).

The instant complaint speaks in conclusory terms and

provides little detail about the February 21, 2022 interaction

between Friedman and Eshel Hotel’s manager. See Compl. 5.

Indeed, Friedman alleges only that the manager “said that I am

not allowed to enter or stay in the hotel based on my disability

Touret Syndrome [sic],” and that he “ha[s] a witness . . . who

heard it on my cell phone.” Id. These allegations, taken as

true, do not “go beyond all possible bounds of decency” or

describe conduct that is “utterly intolerable in a civilized

society.” Stuto, 164 F.3d at 827; see, e.g., Reyes v. Fairfield

Properties, 661 F. Supp. 2d 249, 270 (E.D.N.Y. 2009) (dismissing

IIED claim based on “defendants’ alleged conduct in failing to

provide the requested [housing] accommodations and bringing

retaliatory eviction proceedings”); Nektalov v. Kuwait Airways

Corp., No. 15-CV-33, 2016 WL 5678549, at *10 (E.D.N.Y. Sept. 30,

2016) (dismissing IIED claim where defendant airline refused to

allow plaintiff passenger to board based on her Israeli

citizenship). The complaint also falls short in its allegations

of severe emotional distress, among other elements; Friedman’s

complaint is devoid of any content that describes any distress

he faced as a result of the incident, let alone emotional

distress that could be described as “severe.”

III. Conclusion

The complaint filed in forma pauperis is dismissed

without prejudice. See 28 U.S.C. § 1915(e)(2)(B). Plaintiff

shall have thirty days to file an amended complaint. Plaintiff

is warned that any amended complaint that fails to satisfy an

element of the claim may be dismissed with prejudice. All

pending motions are disposed of via this order.

The Court notes that Plaintiff has filed various

actions in this district, including one with a fact pattern that

closely parallels the one alleged here, and two such prior cases

have been dismissed sua sponte.6 “If a litigant has a history of

filing vexatious, harassing or duplicative lawsuits, courts may

impose sanctions, including restrictions on future access to the

judicial system.” Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d

Cir. 2005). Plaintiff is warned that this Court will not

tolerate vexatious litigation. Further frivolous filings may

result in the issuance of an order prohibiting Plaintiff from

filing any future lawsuits in this Court without first obtaining

leave of the Court.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)

that any appeal from this order would not be taken in good faith

and, therefore, in forma pauperis status is denied for the

purpose of an appeal. Coppedge v. United States, 369 U.S. 438,

444–45 (1962).

SO ORDERED.

/s/ Eric Komitee__________

ERIC R. KOMITEE

United States District Judge

Dated: August 23, 2023

Brooklyn, New York

6 See Friedman v. Friedman, No. 22-CV-978 (EK)(JRC) (dismissing IIED

claim); Friedman v. Hershkop, No. 22-CV-979 (EK)(JRC) (same). A number of

other cases brought by Friedman remain pending. See Friedman v. Chocolatte

Espresso Bar LLC, 22-CV-1645 (EK)(JRC); Friedman v. Hofstra University, No.

23-CV-803 (EK)(JRC), Friedman v. Mendy’s Restaurant, No. 23-CV-1120

(EK)(JRC); Friedman v. Noribar, No. 23-CV-1121 (EK)(JRC); Friedman v.

Winslow, No. 23-CV-4324 (EK)(JRC).