dissents and votes to affirm the order appealed from, with the following memorandum: The majority decision amply demonstrates that Howard Stern and his cohorts behaved in a manner that some would find inappropriate when Chaunce Hayden came on the show with the decedent’s remains. Certainly, many would consider their remarks and conduct in handling the decedent’s remains tasteless, offensive, and insensitive to the feelings of the plaintiffs, who lost their sister to a drug overdose at the age of 27. However, I disagree with the majority’s view that Stern’s actions give rise to a cognizable legal right to recover damages for emotional distress.
At common law, emotional injury was not recognized as an independent basis for the recovery of damages, primarily because of the ease with which emotional injury could be “feigned without detection” (Mitchell v Rochester Ry. Co., 151 NY 107, 110). While modern tort law now permits recovery for emotional distress (see, Fischer v Maloney, 43 NY2d 553, 557), the historical reluctance to allow damages for purely psychic injury is reflected in the formulation of the tort, which demands a showing that the defendant has engaged in “ ‘extreme and outrageous conduct’ ” (Howell v New York Post Co., 81 NY2d 115, 121, quoting Prosser and Keeton, Torts § 12, at 60-61 [5th ed]), with the “intent to cause, or disregard of a substantial possibility of causing, severe emotional distress” (Howell v New York Post Co., supra, at 121).
As the Court of Appeals explained in Howell v New York Post Co. (supra, at 121), “the first element — outrageous conduct — serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff’s claim of severe emotional distress is genuine *493* * * In practice, courts have tended to focus on the outrageousness element, the one most susceptible to determination as a matter of law”. Since the requirements of the rule are “ ‘rigorous, and difficult to satisfy’ ”, the Court of Appeals noted in Howell v New York Post Co. (supra, at 122), that every one of the emotional distress claims it had considered had failed because “the alleged conduct was not sufficiently outrageous” (Howell v New York Post Co., supra, at 122). Indeed, “ ‘[Ill-ability has been found only where the conduct has been 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’ ” (Murphy v American Home Prods. Corp., 58 NY2d 293, 303, quoting Restatement [Second] of Torts § 46 [1], comment d).
The issue of whether the decedent’s brother and sister may recover tort damages cannot be considered in a vacuum, with total disregard for who Debbie Tay was. Debbie Tay rose to fame by spinning outrageous tales of sexual encounters with female aliens on the Howard Stern show, and used the notoriety she had achieved to launch her own cable access show. While the plaintiffs now claim that Stern’s conduct following their sister’s untimely death caused them extreme emotional distress, the defendants note that on one occasion, the decedent’s own mother appeared on the show, describing her daughter as an unusual young woman who was “a lot of fun”.
The record also reflects the fact that the plaintiff Melissa Roach Driscol voluntarily gave a portion of her sister’s remains to the decedent’s close friend, the defendant Chaunce Hayden. Hayden brought the decedent’s remains on the air as a memorial to her because “the only happiness Debbie had was the Howard Stern show”. Once on the air, Hayden encouraged cast members to examine the remains, believing that since the decedent had so enjoyed Stern’s irreverent brand of humor during her lifetime, she “would love this”. Although the plaintiffs allege that the show’s producer ignored their request to cease discussing the disposition of the remains, there is no indication that Stern or Infinity acted out of a desire to cause the plaintiffs distress. Indeed, at the end of the show, Stern advised Hayden that he should have the decedent’s remains properly buried or turned into ashes, telling him to “remember her in your mind”. Closing credits announced that the show was “dedicated in loving memory of Debbie Tay”. Considering these circumstances, I would find, as a matter of law, that the conduct of Stern and Infinity was not so extreme and outrageous in nature as to be “ ‘utterly intolerable in a civilized com*494munity’ ” {Murphy v American Home Prods. Corp., supra, at 303, quoting Restatement [Second] of Torts § 46 [1], comment d). [See, 171 Misc 2d 80.]