Scott v Prison Health Servs., Inc.

[*1] Scott v Prison Health Servs., Inc. 2009 NY Slip Op 51989(U) [25 Misc 3d 1206(A)] Decided on September 9, 2009 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 16, 2009; it will not be published in the printed Official Reports.

Decided on September 9, 2009
Supreme Court, Kings County

Orville Scott, Plaintiff,

against

Prison Health Services, Inc., Defendant.



32750/20089



Counsel:

For Plaintiff:

Pro Se

For Defendant:

Saiber LLC

44 Wall Street, 12th floor

New York, NY 10005

212-461-2323

Francois A. Rivera, J.

By notice of motion filed on January 14, 2009, defendant Prison Health Services, Inc (PHS) moves under motion sequence number one for an order dismissing the complaint pursuant to CPLR §§ 3013, 3016 and 3211(a)(7) on the basis of pleading deficiencies which include failure to state a cause of action. Plaintiff commenced the action pro se and has submitted opposition to the motion.

BACKGROUND

On December 5, 2008 plaintiff commenced the instant action by filing a summons and complaint with the Kings County Clerk's office. On December 15, 2009, plaintiff served the summons and complaint on PHS. PHS motion seeks to dismiss the complaint before being required to answer it. The complaint seeks monetary damages and alleges seven allegation of fact in support of causes of action sounding in wrongful termination and defamation.

The complaint alleges in pertinent part as follows. On April 5, 2008, PHS, acting through its regional medical director, made a wrong diagnosis and wrongfully accused the plaintiff of medical incompetence. PHS then terminated plaintiff from his position as a [*2]physician at Rikers island and forced him to resign as director of two clinics. Plaintiff also alleges, inter alia, that contrary to Public Health Law §230(11) PHS defamed him by the wrongful accusation of medical incompetence.

On February 27, 2009, the motion was adjourned to April 17, 2009 to give the plaintiff an opportunity to file written opposition to the motion. On April 17, 2009, the motion was adjourned to May 22, 2009, to give plaintiff the opportunity to seek legal advice. On May 22, 2009 oral argument was completed and the matter was deemed fully submitted.

MOTION PAPERS

PHS' motion papers consist of an affirmation of counsel, a memorandum of law, and four annexed exhibits. Exhibit A is the complaint. Exhibit B is described in counsel's affirmation as plaintiff's progress note of patient EA. Exhibit C is described in counsel's affirmation as a Clinician Peer Review of plaintiff's handling of patient EA. Exhibit C is a handwritten resignation letter allegedly prepared by the plaintiff and received by PHS.

Plaintiff opposition papers consists of three submissions. The first submission is a letter signed by the plaintiff on March 7, 2009 which contains seven annexed exhibits. The letter was served on PHS on March 24, 2009 and filed with motion support on March 25, 2009. The second submission is a letter signed by the plaintiff on May 3, 2009 which was served on PHS on May 4, 2009 and filed with motion support on May 5, 2009. The third submission is a letter signed by the plaintiff in July of 2009 containing four annexed exhibits. It was served on PHS on July 9, 2009 and filed with motion support on July 28, 2009.

PHS' replied with another memorandum of law.

APPLICABLE LAWCPLR § 3013. Particularity of statements generally. Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.

CPLR Rule 3016. Particularity in specific actions. (a) Libel or slander. In an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally.

CPLR Rule 2214 (c) Furnishing papers to the court. Each party shall furnish to the court all papers served by him. The moving party shall furnish at the hearing all other papers not already in the possession of the court necessary to the consideration of the questions involved. Where such papers are in the possession of an adverse party, they shall be produced by him at the hearing on notice served with the motion papers. Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct.

DISCUSSION

There are several problems with PHS' motion papers. The first is that it is not supported by an affidavit or affirmation of anyone with personal knowledge. This would [*3]not be a problem if PHS' motion was premised solely on the defective pleadings contained in the complaint. PHS, however, does not limit itself to this area. Rather, PHS offers an explanation of the circumstances surrounding plaintiff's termination with supporting exhibits. The explanation is offered in the affirmation of PHS' counsel. The affirmation, however, demonstrates no personal knowledge of the facts alleged therein and therefore has no evidentiary value (Morales v Coram Materials Corp., 51 AD3d 86 [2-Dept 2008]). There is no affidavit from the defendant. However, the affirmation of an attorney, even if he has no personal knowledge of the facts, may of course, serve as a vehicle for the submission of acceptable attachments which do provide evidentiary proof in admissible form e.g. documents, transcripts (Worldwide Asset v.Karafotias, 9 Misc 3d 390at 395 [Civ.Ct., Kings County 2005]). Applying this principle to the annexed exhibits, the court finds as follows.

The affirmation of PHS' counsel described the second exhibit as plaintiff's progress note of a patient identified as EA and describes the third exhibit as Clinician Peer Review. The first annexed exhibit contains the complaint and will be discussed separately.

PHS offered the Clinician Peer Review as probative of a quality review of the plaintiff's performance as a physician in the course of his treatment of patient EA. Inasmuch as the second and third annexed exhibit are unsworn they are inadmissible. (see Spalma v. Lawrence Towers Apartments, LLC, 22 Misc 3d 1109(A) [NY Sup Kings 2008]). While this disposes of the issue of the probative value of these items, PHS is nevertheless cautioned for future reference that the attempted disclosure of a clinician peer review may violate the confidentiality provisions of Education Law §6527(3). The court need not and does not find that this occurred in the instance because the document has not been authenticated and has been determined inadmissible on other grounds.

PHS contends that contrary to the requirements of CPLR 3013, the complaint does not give notice of the transactions or occurrences intended to be proved and the material elements of the causes of action claimed. Secondly, PHS claim that contrary to the specific pleading requirements of CPLR 3016 pertaining to libel and slander, the complaint does not state the particular words which plaintiff claims defamed him.

PHS annexes as the first exhibit to its motion what is purported to be a complete copy of the complaint in support of it contention. The complaint, however, in the third allegation of fact refers to "exhibits one page two and four" and "exhibit two page one and two". Also in the fifth allegation of fact the complaint references "exhibit pages two and three." The complaint is apparently incomplete in that it does not contain any annexed exhibits. Resting on that assumption, the court cannot determine the sufficiency of causes of action plead therein (see generally Alizio v. Perpignano, 225 AD2d 723 [2nd Dept.1996]). The failure of PHS to establish its prima facie entitlement to judgment dismissing the complaint requires denial of motion regardless of sufficiency of opposing papers (Martinez v. 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, [2-Dept 2008]).

PHS' motion to dismiss the complaint is therefore denied.

The foregoing constitutes the decision and order of this court.[*4]______________________________________x

J.S.C.