Yunis v. First USA Bank

—Order, Supreme Court, New York County (Alfred Toker, J.H.O.), entered November 15, 1996, which, inter alia, granted defendants’ motion for summary judgment to the extent of dismissing plaintiffs’ claims for defamation, intentional infliction of emotional distress and punitive damages, unanimously modified, on the law, to dismiss the remaining claim for damages sustained in connection with mortgage application delays, and otherwise affirmed, with costs payable to defendant. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint. The statements alleged to have been defamatory were business communications concerning plaintiffs’ account, and while incomplete, did not rise to the level of defamation (see, Wilson v Merrill Lynch, Pierce, Fenner & Smith, 111 AD2d 807, affd 66 NY2d 988). Plaintiffs presented no evidence that defendant was guilty of conduct so outrageous in character and so extreme as to go beyond all possible bounds of decency and to be regarded as atrocious (Murphy v American Home Prods. Corp., 58 NY2d 293, 303). The remaining claim should also have been dismissed. This claim is unprovable given the prior unappealed order of preclusion entered against plaintiffs. We have reviewed plaintiffs’ other arguments and find them to be without merit. Concur—Sullivan, J. P., Milonas, Rosenberger and Williams, JJ.