On March 9, 2023, the Appellate Division, First Department lightened the burden of proof required to recover money damages for the negligent infliction of emotional distress cause of action. The defendant owned a building in Manhattan where a camera with a recording device was found set up to view the women's restroom through a hole cut between the men's and women's restrooms. The plaintiffs were comprised of 14 women who were the subject of graphic surreptitiously recorded videos. The appellate court explained that in the absence of a physical injury to recover damages for emotional injuries only, from the building owner (who clearly had constructive notice of the grapefruit size hole in the wall) the plaintiffs did not have to prove "extreme and outrageous conduct" as is required under a claim of intentional infliction of emotional distress.

It would be a simple matter to prove that the creep who installed the spy camera engaged in "extreme and outrageous conduct" but far more difficult against the building owner who simply failed to investigate the purpose of a large hole between the restrooms. The appellate court emphasized that the plaintiffs "unquestionably understandably" suffered emotional trauma because their testimony of experiencing disgust, mortification. paranoia and feeling violated was reasonably expected. Thus, the court stated that the plaintiffs had satisfied the requisite standard of the "likelihood of genuine and serious mental distress, arising from special circumstances." Brown v New York Design Ctr., Inc., 2023 N.Y. Slip Op. 01228