LaRussa v. LaRussa

—Judgment, Supreme Court, New York County (Charles Ramos, J.), entered December 14, 1995, dismissing the complaint and bringing up for review an order of the same court and Justice entered December 4,1995, which granted defendant’s motion to dismiss the complaint for failure to state a cause of action and imposed $5,000 sanctions on plaintiffs’ counsel, unanimously modified, on the law, the facts and in the exercise of discretion, to vacate the imposition of sanctions against plaintiffs’ counsel, and otherwise affirmed, without costs.

The IAS Court properly dismissed the complaint for failure to state a cause of action for intentional infliction of emotional distress since defendant’s refusal to resume a relationship with his grown daughters from a previous marriage or to mention *298them to the press was not conduct " ' "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency” ’ ” (Howell v New York Post Co., 81 NY2d 115,122, quoting Murphy v American Home Prods. Corp., 58 NY2d 293, 303, quoting Restatement [Second] of Torts § 46, comment d). The cause of action for negligent infliction of emotional distress was also properly dismissed since plaintiffs failed to establish that defendant owed them a special duty or to allege that his conduct unreasonably endangered their physical safety (Losquadro v Winthrop Univ. Hosp., 216 AD2d 533).

It was an improvident exercise of discretion to impose sanctions against plaintiffs’ counsel, however, since the action did not constitute the type of frivolous, groundless litigation envisioned by 22 NYCRR 130-1.1 (c) (1). The facts of this matter do not mirror any of those in cases previously decided in this field. That the weight of authority may have favored defendant or that plaintiffs’ novel claims were unlikely to succeed did not render plaintiffs’ conduct frivolous (see, Matter of Bozer v Higgins, 204 AD2d 979). Concur—Milonas, J. P., Wallach, Kupferman, Tom and Andrias, JJ.