JR v DC
Annotate this CaseDecided on June 14, 2006
Supreme Court, New York County
JR, Plaintiff,
against
DC, Psychotherapist, Defendant. JR, Plaintiff, TG, Ph.D., Defendant.
JR, Plaintiff, against
against
TG, Ph.D., Defendant.
XXX
Judith J. Gische, J.
Plaintiff commenced an action against defendant ("TG"), a psychologist for: [1] [*2]professional malpractice; [2] negligent infliction of emotional distress; [3] breach of confidential relationship; and [4] prima facie tort. She seeks to have this action consolidated with an action for malpractice that she previously brought against psychologist DC. Defendant has brought a pre-answer cross-motion to dismiss. He claims that the court has no personal and/or long arm jurisdiction over him; the intentional causes of action are barred by the applicable statutes of limitation and that the complaint otherwise fails to state a cause of action against him. He also opposes consolidation.
Plaintiff concedes that the claims for intentional tort are outside the applicable one year statute of limitations. See: Langford v. Roman Catholic Diocese of Brooklyn, 271 AD2d 494 (2nd dept. 2000). Consequently, motion to dismiss the intentional cause of action for prima facie tort is granted.
Since the intentional tort has been dismissed, the only remaining causes of action are for malpractice, negligent infliction of emotional distress and breach of confidential relationship. It is black letter law that when considering a motion to dismiss, the court is required to presume the truth of all allegations contained in the challenged pleadings and resolve all inferences which may reasonably flow therefrom in favor of the non-movant. Cron v. Hargro Fabrics, Inc., 91 NY2d 362 (1998); Sanders v. Winship, 57 NY2d 391 (1982). Thus, while defendant factually disputes plaintiff's allegations, these disputes are not germane to the court's present inquiry.
The sole criterion for the courts consideration is whether the pleading states a cause of action. If from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law, the motion for dismissal will fail. The courts inquiry is whether the plaintiff has a cause of action, not whether he has stated one. Guggenheimer v. Ginzberg, 43 NY2d 268 (1977).
The operative facts as alleged in plaintiff's unverified complaint are as follows: Plaintiff was a patient of psychotherapist DC from 1986 through 2003. In 2002, she claims that Dr. DC seduced her and that after that she continued to have an emotional, business and physical relationship with Dr. DC. Plaintiff has brought a separate malpractice action against Dr. DC. The defendant in this action is also a psychotherapist. Plaintiff claims that defendant had a prior professional and therapeutic relationship with Dr. DC. Plaintiff claims that at the urging of Dr. DC she and Dr. DC both met with defendant for therapy. She alleges that there were two meetings, one in New York City and one in Massachusetts. She alleges that the purpose of the sessions was to convert that therapeutic relationship into a "personal, business and sexual relationship." Defendant was paid for his services.
Plaintiff's claim for professional malpractice is based upon her contentions that defendant: "negligently failed to prevent plaintiff or warn plaintiff against engaging in personal, business, and sexual relations with DC as contrary to the therapeutic purpose; negligently failed to stop DC from engaging in personal, business and sexual relations with Plaintiff; negligently filed to practice psychotherapy in a manner consistent with community standards, or properly treat Plaintiff, but instead attempted to perpetuate the damaging personal, business and sexual relationship between Plaintiff and DC which worsened Plaintiff's underlying condition and invalidated any prior psychotherapy given by DC to Plaintiff" [*3][complaint ¶ 24].
Malpractice is professional negligence. The elements of a prima facie cause of action are: [1] a deviation or departure from accepted practice within the profession and within the relevant professional community; and [2] evidence that such departure was a proximate cause of injury or damage. Toth v. Community Hospital at Glen Cove, 22 NY2d 255 (1968); Darren v. Safier, 207 AD2d 473 (2nd dept. 1994); Finkelstein v. Long Island Jewish Hillside Medical Center, 137 AD2d 745 (2nd dept. 1988).
It is recognized in this state that a malpractice cause of action exists against a therapist that uses his or her professional relationship to coerce a patient to engage in sexual relations. McKay v. Ciani, 288 AD2d 587 (3rd dept. 2001); Fragosa v. Haider, 17 AD3d 526 (2nd dept. 2005); Roy v. Hartogs, 81 Misc 2d 350 (NY Civ. Ct. 1975). This case, however, seeks to go one step further and hold a second treating therapist responsible for a patient having a sexual relationship with a different treating therapist. Neither party has cited any case directly on point.
It is undisputed that plaintiff's emotional business and personal relationship with Dr. DC pre-dated any alleged therapy given by defendant. The court assumes as true on this motion plaintiff's claim that defendant knew about the relationship at the time of the treatment. Plaintiff's claim that defendant should have "prevented" both herself and Dr. DC from engaging in such a relationship does not set forth cognizable claim against defendant. Defendant had no ability as a therapist to "prevent" patient behavior any more than any therapist can guarantee a good outcome of therapy. Plaintiff also claims that defendant failed to warn her that engaging in an emotional, business and sexual relationship with Dr. DC was contrary to therapeutic purpose. Even if the court assumes that defendant had a duty to warn plaintiff, there are no facts from which one could conclude causation. Plaintiff herself does not even allege that had she been "warned" she would have stopped the existing and ongoing relationship with Dr. DC. Plaintiff's final claim that defendant "perpetuated" the relationship between plaintiff and Dr. DC is a conclusion that is not supported by the factual allegations.
The claim for malpractice must, therefore, be dismissed.
In this regard the court's decision makes no determination about whether the facts, as alleged, constitute some ethical violation on defendants part. The court is simply ruling that the facts, as alleged, do not make out a claim for malpractice.
The second cause of action is for negligent infliction of emotional distress. The elements of an action for negligent infliction of emotional distress are a breach of a duty owed to plaintiff which exposes him or her to an unreasonable risk of bodily injury or death. Bovsun v. Sanperi, 61 NY2d 219 (1984). While physical injury is not a necessary element of a cause of action to recover for negligent infliction of emotional distress, such a cause of action must generally be premised upon conduct that unreasonably endangers a plaintiff's physical safety or causes the plaintiff to fear for her own safety. Saava v. Longo, 8 AD3d 551 (2nd dept. 2004); Johnson v. New York City Board of Education, 270 AD2d 310 (2nd dept. 2000). At bar, plaintiff's allegations do not claim that defendant's conduct endangered her physically in any way or caused her to fear for her own safety. Plaintiff's allegations are insufficient to sustain this cause of action.
The remaining cause of action, for breach of a confidential relationship, is [*4]indistinguishable from the professional malpractice action. It is not a separately cognizable cause of action and must therefore, likewise, be dismissed.
In view of the fact that the court does not believe that the complaint states a cause of action, it need not reach the jurisdictional issues raised by defendant. Additionally the issue of consolidation is rendered moot.
Conclusion
In accordance with this decision, it is hereby:
ORDERED that plaintiff's motion for consolidation is denied as moot; and it is further
ORDERED that defendants motion to dismiss the complaint is granted and the Clerk is directed to enter a judgment dismissing such complaint in its entirety; and it is further
ORDERED that the first cause of action for malpractice is hereby dismissed for failure to state a cause of action; and it is further
ORDERED that the second cause of action for negligent infliction of emotional distress is granted for failure to state a cause of action; and it is further
ORDERED that the third cause of action for breach of a confidential relationship is granted based upon the application of the statute of limitations; and it is further
ORDERED that the fourth cause of action for prima facie tort is granted based upon the application of the statute of limitations; and it is further
ORDERED that any requested relief not expressly granted herein is denied.
This shall constitute the decision and order of the Court.
Dated: New York, New YorkSo Ordered:
June 14, 2006 ___________________________
HON. JUDITH J. GISCHE, J.S.C.
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