Before the court is a motion by plaintiff for injunctive relief, and a cross-motion by defendant to dismiss the complaint pursuant to CPLR § 3211(a) (1)(2)(3)(7)(8)(10). The complaint states five causes of action: 1) intentional infliction of emotional distress; 2) intentional infliction of harm (later characterized by plaintiff as prima facie tort); 3) breach of fiduciary duty; 4) misappropriation of confidential information; and 5) injunction.

The complaint alleges that: defendant had been employed by plaintiff for a 7-year period as a nanny to care for plaintiff's household and two children; in August 2004 defendant was fired for cause; during the course of her employment, defendant took medical and financial records of plaintiff without permission (¶ 10); in September 2004, October 2004, and May 2005 defendant sent numerous letters and documents to over 30 people revealing certain medical and financial information relating to plaintiff (¶¶ 11-12); and that recipients of the letters included plaintiff's family, friends, business associates, as well as individuals at the Rodeph Sholom School where plaintiff's son was enrolled (¶ 12). Plaintiff commenced this action by filing her complaint on September 20, 2005.

"On a motion to dismiss pursuant to CPLR § 3211, the pleading is to be afforded a liberal construction .... We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory, (and) ... [i]n assessing a motion under CPLR 3211(a) 7, however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint"[Leon v. Martinez, 84 NY2d 83, 87-88 (1994)]. "Although on a motion addressed to the sufficiency of a complaint, the facts pleaded are presumed to be true and accorded every favorable inference ... nevertheless, allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration' [Roberts v. Pollack, 92 AD2d 440, 444 (1983)]" [Mark Hampton, Inc. v. Bergreen, 173 AD2d 220 (1st Dept. 1991)]. Here, both parties have submitted numerous affidavits with respect to the causes of action set forth in the complaint.

"The tort of intentional infliction of emotional distress predicates liability on the basis of [*2]extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society." Freihofer v. Hearst Corporation, 65 NY2d 135, 143 (1985). In Howell v. The New York Post Company, Inc., 81 NY2d 115 (1993), the Court of Appeals noted that "requirements of the rule are rigorous and difficult to satisfy ... (and that every such claim) considered by this court ... has failed because the alleged conduct was not sufficiently outrageous" (p. 122). But, in 64 Mulbury St. Corp. v. Columbia University, 4 AD3d 49 (1st Dept. 2004), where the individual defendant as part of a research project sent letters to numerous New York City restaurants alleging that his wife had suffered from food poisoning, the court sustained the complaint. After stating the principle that the "conduct must be more than mere insults, indignities and annoyances ... (and the) claim is dismissible unless the claim arises out of a campaign of harassment or intimidation," it held the "several letters could be construed in the aggregate as presenting a campaign of harassment, albeit directed against distinct individuals, ... (and) his ill-conceived mode of gathering data for the project may have resulted in a campaign of harassment of the individual restaurant owners." (p. 56). It thus concluded there was "an adequate factual basis for potential findings that the conduct was sufficiently outrageous so as to support the claim." (p. 57).

Defendant argues that plaintiff's complaint is time-barred under the one-year statute of limitations for intentional torts because the alleged questionable conduct took place prior to September 20, 2004. Plaintiff avers that defendant's "smear campaign" started on or about September 21, 2004 and continued through May 30, 2005. However, even if the alleged conduct commenced prior to September 20, 2004, under the "continuing tort doctrine" plaintiff is entitled "to rely on wrongful conduct occurring more than one year prior to the commencement of the action, so long as the final actionable event occurred within one year of the suit" [Shannon v. MTA Metro-North Railroad, 269 AD2d 218, 219 (1st Dept. 2000)]. Here, in light of the claim of continual harassment, and considering the facts in a light most favorable to plaintiff, the cause of action for intentional infliction of emotional distress is not time barred.

Defendant also argues that her actions could not be considered extreme and outrageous enough to satisfy the requirements for intentional infliction of emotional distress, and that plaintiff did not suffer actual damages. However, similar to the defendant in 64 Mulbury St. Corp, the defendant in the present case is alleged to have undertaken a "campaign" of harassment by sending letters, which included derogatory comments and information regarding medical procedures plaintiff purportedly had undergone, to over 30 friends, family, and acquaintances of the plaintiff. As a consequence, plaintiff alleges that she has suffered damages in the form of anxiety, mental distress, migraine headaches, and exacerbations of physical harm, as well as damage to her reputation. While to sustain this cause of action plaintiff will have to supply medical evidence [Walentas v. Jones, 257 AD2d 352 (1st Dept. 1999)], the court finds that the allegations of the complaint, as amplified by the submitted affidavits, are sufficient to state a cause of action for intentional infliction of emotional distress. Therefore, the motion to dismiss same is denied.

"The requisite elements of a cause of action for prima facie tort are (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful." (Freihofer, supra, at pp. 142-143). See also, Curiano v Suozzi, 63 NY2d 113, 117 (NY 1984); Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 332 (NY 1983). Here, plaintiff alleges that her special [*3]damages included suffering mental anguish, humiliation, and injury to her reputation, as well as loss of time away from family and friends. This is an inadequate specificity of special damages. See, Patane v. Griffen, 164 AD2d 192 (3rd Dept. 1990); Vigoda v. D.C.A. Productions Plus Inc., 293 AD2d 265 (1st Dept. 2002). Thus, the cause of action for prima facie tort is dismissed.

The Court of Appeals stated in EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 (2005), that a "fiduciary relationship exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation (and) [s]uch a relationship, necessarily fact-specific, is grounded in a higher level of trust than normally present in the marketplace between those involved in arms-length business transactions." In Maritime Fish Products, Inc. v. World-Wide Fish Products, Inc., 100 AD2d 81 (1st Dept. 1984), where plaintiff's former employee allegedly solicited his employer's customers, it was stated that " [i]t is a firmly established principle in the law of this State that, [an employee] is prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his duties." (P. 88). And, in DDS Partners, LLC v. Vincent Celenza, 16 AD3d 114 (1st Dept. 2005), where the defendant sold his dental practice to plaintiff and subsequently solicited patients, it was held that the "defendant owed a duty of loyalty to his new employer and could not be in business for himself while so employed [and that] an employee's duty of loyalty remains even in the absence of a contract restriction." (p. 115).

Here, defendant worked in plaintiff's household for seven years tending to the care of her children and some household matters. Despite the longevity of defendant's employment, a fiduciary relationship did not exist between plaintiff and defendant. Unlike the facts in above cited cases, where fiduciary relationships existed for the purpose of selling products in the marketplace, obtaining customers, or advising clients on business transactions, the relationship between plaintiff and defendant existed only so defendant could care for plaintiff's children. It follows that defendant did not have a fiduciary relationship with plaintiff. Therefore, the cause of action for breach of fiduciary duty is dismissed.

A cause of action for misappropriation of confidential information generally applies to cases where former employees utilize confidential information in the form of trade secrets. In CBS Corp. v. Dumsday, 268 AD2d 350 (1st Dept. 2000), where the defendant disclosed confidential information to plaintiff's competitor, the court denied a motion to dismiss and stated that, "common-law misappropriation and unfair competition are rooted in the improper use of trade secrets to gain an advantage over plaintiff." (p. 353). "Unfair competition and the misappropriation and exploitation of confidential information is the loss of profits sustained by reason of the improper conduct . . . limited to lost profits resulting from the defendant's actual diverting of customers." [Suburban Graphics Supply Corp. v. Nagle, 5 AD3d 663, 666 (2nd Dept. 2004)]. Thus, a cause of action for misappropriation of confidential information is ordinarily applied in cases where the confidential information is used to disrupt business practices and competition.

Here, defendant's actions do not fall within the ambit for a cause of action for misappropriation of confidential information. First, the medical and financial records were not [*4]used by the defendant to create a "competing business," nor did use of the records result in a loss of profits for the plaintiff. Secondly, the defendant is not a "covered entity" under the Health Insurance Portability and Accountability Act as she is not a healthcare provider. Thus, the cause of action for misappropriation of confidential information is dismissed.

To seek relief in the form of a preliminary injunction, the party must demonstrate: 1) a likelihood of success on the merits; 2) irreparable harm in the absence of injunctive relief; and 3) a weighing of equities in the movant's favor [Aetna Insurance Company v. Capasso, 75 NY2d 860 (1990); Grant v. Srogi, 52 NY2d 496 (1981)].

In Bingham v. Struve, 184 AD2d 85 (1st Dept. 1992), the defendant sent letters and made telephone calls to plaintiff's family and friends, claiming that plaintiff had raped her thirty-six years ago. Subsequently, the defendant took to wearing a hand-lettered sandwich board outside of plaintiff's home, making similar allegations of rape. In granting the requested preliminary injunction enjoining the continuation of such activity, the court concluded that "the potential harm caused by the defendant's continued communications and the picketing of plaintiffs' home is irreparable, as it is capable of injuring plaintiff husband's standing and reputation in all aspects of his personal and professional life, and of inflicting serious psychological and emotional damage to both plaintiffs ... (and) the degree of harm to be caused to plaintiffs if the conduct continues unabated far exceeds any which may be caused to defendant if her picketing and other communications are enjoined pending the trial" (pp. 89-90).

While freedom of speech protection is not absolute, "prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights" [Nebraska Press Ass'n. v. Stuart, 427 U.S. 539, 559 (1976)], and the burden on one who would impose a prior restraint of speech is heavy [Near v. Minnesota, 283 U.S. 697 (1931); Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971)].

While the court has sustained plaintiff's cause of action for intentional infliction of emotional distress, in considering whether the equities balance in plaintiff's favor in order to grant injunctive relief, it is necessary to weigh the harm plaintiff would experience if defendant's conduct were to continue against defendant's right to free speech. See, Bingham v. Struve, supra at p. 90. Although libel and slander are not protected speech, plaintiff did not bring a cause of action for either. Defendant sent letters and made phone calls to plaintiff's friends and family members, but at no time was there "face to face" interaction between plaintiff and defendant that could bring about an immediate breach of the peace. Taking the facts in a light most favorable to plaintiff, the potential danger in not protecting defendant's right to free speech outweighs the potential damage to plaintiff. Thus, plaintiff's request for injunctive relief is denied.

This decision constitutes the order of the court.

Dated: July 5, 2006_______________

J.S.C. [*5]