FERGUSON v. CITY OF NEW YORK

Plaintiff alleges that while confined to a jail under defendant's guard, defendant allegedly played an audiocassette within plaintiff's earshot that contained anti-Semitic statements. Assuming plaintiff's captivity was a circumstance that tended to make the alleged conduct something "`more than mere insults, indignities, and annoyances'" (Leibowitz v. Bank Leumi Trust Co., 152 A.D.2d 169, 181-182), it remains that according to plaintiff's own deposition testimony, confirmed by defendant's testimony, defendant was not playing the tape with the intent of causing plaintiff emotional distress, but rather for his fellow officers to hear. Indeed, plaintiff could have avoided hearing the tape by moving to the back of the cell, but chose not to. In short, giving plaintiff's assertions every favorable inference, his captor-captive relationship with defendant was not so intimidating as to make defendant's conduct "extreme and outrageous" within the meaning of those words for purposes of a cause of action for intentional infliction of emotional distress (compare, Vasarhelyi v. New School for Social Research, 230 A.D.2d 658, 659-660). However, nothing in this decision is to condone the actions of defendant in playing an anti-Semitic tape in a penal institution so that it could be overheard by prisoners and others.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.