Ashmore v Lewis

Ashmore v Lewis 2013 NY Slip Op 08386 Decided on December 17, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 17, 2013
Friedman, J.P., Acosta, Renwick, Manzanet-Daniels, Gische, JJ.
11362 108248/11

[*1]Benjamin J. Ashmore, Sr., etc., Plaintiff-Appellant, Dr.

v

Wilma Cohen Lewis, Defendant-Respondent.




Benjamin J. Ashmore, Sr., National Family Civil Rights Center,
New York (Benjamin J. Ashmore, Sr. of counsel), for appellant.
Martin Clearwater & Bell LLP, New York (Arjay G. Yao,
Jeffrey A. Shor and Ryan M. Donihue of counsel), for
respondent.

Appeal from order, Supreme Court, New York County (Alice Schlesinger, J.), entered January 27, 2012, which granted defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint, deemed an appeal from judgment, same court and Justice, entered February 7, 2012, dismissing the complaint (CPLR 5501[c]), and, so considered, unanimously affirmed, without costs.

The documentary evidence submitted by defendant, a psychologist appointed by the court as the neutral forensic evaluator with the consent of the parties' attorneys and the children's attorney in an underlying custody proceeding in Kings County Supreme Court, established conclusively that judicial immunity precludes plaintiff from recovering damages for
negligence or malpractice against her (see Bridget M. v Billick, 36 AD3d 489 [1st Dept 2007]).

While immunity is not absolute where a court-appointed expert acts beyond the scope of her authority (see generally Della Pietra v State of New York, 71 NY2d 792 [1988]), plaintiff failed to establish that defendant acted beyond the scope of her authority, or to show any exception that would warrant lifting the immunity.

We have considered plaintiff's remaining arguments and find them unavailing.

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

ENTERED: DECEMBER 17, 2013

CLERK