NOT FOR PUBLICATION WITHOUT THE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
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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
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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
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negligent infliction of emotional distress. The trial court
correctly determined that WCOA and Phillips were entitled to
judgment.
Affirmed.
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