Dupree v Giugliano

Annotate this Case
[*1] Dupree v Giugliano 2009 NY Slip Op 50697(U) [23 Misc 3d 1110(A)] Decided on April 2, 2009 Supreme Court, Suffolk County Rebolini, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 2, 2009
Supreme Court, Suffolk County

Kristin Kahkonen Dupree, Plaintiff,


James E. Giugliano, Defendant.


Attorney for Plaintiff:

Berler & Tanenbaum, LLP

25 West Main Street

Smithtown, NY 11787

Of Counsel:

Kenneth Cooperstein, Esq.

54 Harbor Park Drive

Centerport, NY 11721

Attorney for Defendant:

Shayne, Dachs, Corker,

Sauer & Dachs, LLP

114 Old Country Road, Suite 410

Mineola, NY 11501

William B. Rebolini, J.

In this medical malpractice action in which plaintiff alleged that she was exploited sexually by her physician while she was being treated by him for depression, the plaintiff moves ". . . for an order pursuant to CPLR §4406 (a) granting plaintiff's CPLR §4401 trial motion for judgment in her favor upon the ground that she proved a prima facie case which defendant failed to rebut because his testimony was incredible as a matter of law; and/or (b) granting plaintiff's CPLR §4404 trial motion for judgment in her favor upon the ground that she is entitled to judgment as a matter of law, or, in the alternative, setting aside parts of the verdict in the interest of justice and/or upon the ground that it is contrary to the weight of the credible evidence and granting judgment in favor of plaintiff as demanded in the complaint" (see plaintiff's post-trial notice of motion dated December 29, 2008) and for other relief. Defendant opposes the motion [*2]and separately moves for an order pursuant to CPLR §4404(a) setting aside the verdict.

The trial of this action was conducted before a jury over nine days between October 29, 2008 and November 12, 2008. The instant motion by plaintiff was filed on December 29, 2008 without a trial transcript. The defendant's motion was filed on January 5, 2009. In plaintiff's memorandum of law in support of her motion, it is noted that the Court accorded both sides 45 days within which to file their motions. This period was to be measured from November 12, 2008 when the trial concluded. In that the forty-fifth day, December 27, 2008, was a Saturday, the succeeding Monday, December 29, 2008, was the filing deadline for both plaintiff and defendant, that is, simultaneous filings were contemplated, agreed to and directed.

The plaintiff had moved at the conclusion of defendant's case for judgment pursuant to CPLR §4401 on the asserted ground that plaintiff proved a prima facie case and that defendant failed to rebut that case because he, defendant, was incredible as a matter of law. After the jury returned a verdict in favor of plaintiff in part, plaintiff moved to set aside parts of the verdict in the interests of justice and for being contrary to the weight of the evidence and for judgment granting all the relief plaintiff sought, specifically, 100 percent of her general and special damages rather than the 75 percent of such damages awarded by the jury's verdict, and the amount of the expenses of her divorce totaling $154,000 (see, plaintiff's memorandum of law in support of post-trial motions, at pp. 1 - 2). The Court reserved decision on all trial motions.

Plaintiff's Motion for Judgment pursuant to CPLR §4401:

Branch "(a)" of the plaintiff's written motion filed December 29, 2008 reiterates the motion made at the conclusion of defendant's case, i.e., for judgment in plaintiff's favor on the alleged basis that she proved a prima facie case and that defendant failed to rebut it because "he was incredible as a matter of law" (see, plaintiff's memorandum of law, at pp. 1 - 2). No support is proffered by plaintiff as to this branch of her motion and the Court finds no support for it. The jury determined in effect that the injury sustained by plaintiff was the result of both the defendant's malpractice (i.e., departure) and the plaintiff's own conduct and that the appropriate apportionment of responsibility was 25 percent to plaintiff and 75 percent to defendant based on their respective conduct. The Court recalls that while defendant clearly provided certain testimony which was demonstrably false or otherwise erroneous, such circumstance did not render his entire account of relevant facts invalid (or similarly false), nor was the jury required to discount or reject all particulars of defendant's testimony based on the circumstance that certain of his assertions of fact were apparently false; accordingly, the Court finds no basis for altering or setting aside the verdict reached by the jury on the theory advanced by the plaintiff nor, based on its research and the lack of authority offered by plaintiff, does the Court believe such a ground to exist; therefore, branch (a) of plaintiff's motion is denied (see, generally, Windisch v. Weiman, 161 AD2d 433 [1st Dept., 1992] ("... it is the jury's function to assess conflicting evidence and determine the credibility of the witnesses and the weight to be accorded expert testimony. [citations omitted]"); Gerdik v. Van Ess, 5 AD3d 726 [2nd Dept., 2004]).

Plaintiff's Motion for Judgment pursuant to CPLR §4404:

Branch "(b)" of plaintiff's motion seeks judgment pursuant to §4404 "upon the ground that ...[plaintiff]... is entitled to judgment as a matter of law or, in the alternative, setting aside parts of the verdict in the interest of justice and for upon the ground that it is contrary to the weight of the credible evidence" (see plaintiff's notice of motion dated December 29, 2008).

The first argument advanced by plaintiff in her brief is essentially that in this case the Court erred in charging the jury on the doctrine of comparative negligence, that is, the issue of culpable conduct of the plaintiff; specifically, plaintiff objected to the defendant's request to charge PJI §2:36 ( concerning comparative fault); correspondingly, the Court declined to charge PJI §§2:55 ("Implied Assumption of Risk") and 2:11 ("Common Law Standard of Care - Negligence Defined - Where Plaintiff Under Disability") as requested by the plaintiff. Plaintiff contends that in the circumstances giving rise to the claims in this case, plaintiff was "compelled by eroticized transference and incapable of exercising care for her own safety", that she lacked the "requisite capacity" and "volition" and was capable of only "diminished control" of herself (see plaintiff's memorandum of law, at pp. 16-18). In sum, plaintiff asks that the Court consider similar the "inherent compulsion" criteria discussed in an educational context (see, e.g., Verduce v. Board of Higher Education, 9 AD2d 214 [1st Dept., 1959] rev'd on dissenting opn. 8 NY2d 928 [1960]) or athletic activity context (see, e.g., Smith v. J.H. West Elementary School, 52 AD3d 684 [2nd Dept., 2008]) to what plaintiff calls the compulsion (of plaintiff's conduct) by eroticized transference in this case (see plaintiff's memorandum of law, at p.17). The plaintiff does not cite case authority exactly on point, that is, upon the same or reasonably close factual circumstances (a sexual relationship purportedly forced on plaintiff) in the context of an action on the theory of medical malpractice.

In this Court's view based on its research, the question of the application of the doctrine of comparative fault may not have arisen in precisely the context involved herein or there is no reported case law interpretation upon such facts in such context. Nonetheless, at the time the jury was charged it was the Court's determination that, given the plaintiff's age and experience and notwithstanding the defendant's professional status and the nature of the parties' relationship at its inception (doctor/patient), it remained that the plaintiff was possessed of a will of her own and was not utterly bound by defendant's influence or choices but, rather, free to exercise her judgment and to engage in such conduct as she chose; thus, the Court determined to charge the jury with PJI §2:36 ("Comparative Fault") at defendant's request and to refuse plaintiff's requests to charge PJI §§2:55 (""Implied Assumption of Risk") and 2:11 ("Common Law Standard of Care - Negligence Defined - Where Plaintiff Under Disability") (argued by plaintiff to pertain, inter alia, to plaintiff's purported diminished capacity and lack of volition). It was and remains the Court's determination that it correctly charged the jury in this particular context by charging comparative negligence and excluding the charges as to PJI §§2:11 and 2:55. Plaintiff was not denuded, by virtue of the physician patient relationship, of an ability to control her own conduct and to exercise her own adult judgment given the extended period of and the palpably apparent [*3]consequences of the conduct in question herein, an affair where both parties were married to others. For the Court to have charged as the plaintiff requested effectively would have removed from the equation to be submitted to the jury for its determination any aspect of plaintiff's conduct in the scenario it considered, a result which would run afoul of the intent of CPLR Article 14-A (see, CPLR §1411; Beck v. Northside Medical, 46 AD3d 499 [2nd Dept., 2007]; cf., DiMarco v. New York City Health and Hospitals Corp., 247 AD2d 574 [2nd Dept., 1998]; see, also, Werner v. Central General Radiologists, 130 AD2d 574 [2nd Dept., 1987]). Although plaintiff reasonably asserts in effect the defendant doctor's superior position in the instant context, that circumstance cannot be said to constitute such divestiture of plaintiff's determination of her own conduct as to remove any consideration thereof by the trier of fact (see, Gallo v. 800 Second Operating, Inc., 300 AD2d 537 [2nd Dept., 2002]). Accordingly, branch (b) of plaintiff's motion is also denied.

The Court also rejects plaintiff's additional ground for the instant motion, to wit, that the jury's determination not to award plaintiff claimed costs of her divorce ($154,000) was against the weight of the evidence. Butler v. Lutheran Med. Ctr., 36 AD2d 640 [2nd Dept., 1971], cited by plaintiff, is not on point; WMS Builders, Inc. v. Newburgh Steel Prdcts, Inc., 289 AD2d 567 [2nd Dept., 2001], did not involve expenses of a separate divorce litigation and arguably provides a basis for sustaining the jury's rejection of plaintiff's account of such divorce related expenses since, in WMS, the testimony concerning expenses was by a witness from plaintiff's job (a supervisor who "had knowledge of the actual costs" [ibid.]). Plaintiff herein may have known what she was charged but her account of the costs incurred by attorneys alleged to have resulted in fees of $154,000. is a matter of what plaintiff was told by others; thus, the jury was free to reject plaintiff's proof as to such damages.

Defendant's Motion to Set Aside the Verdict:

Defendant's motion was untimely filed and denial upon such circumstance alone is a matter within the Court's discretion[FN1]. The Court shall exercise its discretion to extend the filing deadline nunc pro tunc to January 5, 2009, the date of receipt of (filing of) defendant's motion (see, CPLR §2004), particularly in view of the fact it was apparently served on December 29, 2008.

The defendant's first two contentions are that the instant action is actually one to recover damages for seduction, a claim which was abolished by New York Civil Rights Law §80-a, or a claim for alienation of affections expressly barred by that section. The cases relied on by the [*4]defendant in this regard are not dispositive herein although, superficially, certain of defendant's citations bear some similarity to the instant matter. Marmelstein v. Kehillat New Hempstead, 45 AD3d 33 [1st Dept, 2007] affirmed 11 NY3d 15 [2008], cited by defendant, does not involve a cause of action for malpractice or a physician; rather, in Marmelstein the founder and spiritual leader of a synagogue who acted as plaintiff's counselor and advisor was alleged to have induced plaintiff into a sexual relationship; the claims asserted by plaintiff sounded in negligence, intentional infliction of emotional distress and breach of fiduciary duty. The Appellate Division, First Department, essentially determined the complaint alleged "nothing more than thinly veiled claims of seduction, prohibited by Civil Rights Law §80-a . . ." (ibid.). In the instant action, in contrast, the claim is medical malpractice and the proof at trial demonstrated that the treatment administered to the plaintiff by defendant, a physician and psychiatrist, included narcotics and other drugs with effects which the jury could reasonably conclude were directly involved in plaintiff's medical treatment and could have adversely impacted plaintiff. The Marmelstein defendant was not a physician; that case did not involve administration of drugs as part of whatever sex therapy was given to plaintiff therein. In short, Marmelstein is not controlling in this case, which is not a veiled seduction claim but one where plaintiff legitimately asserts a duty and violation thereof by defendant, a medical doctor, constituting malpractice[FN2]. Nor is defendant's citation to the Appellate Division, Third Department's decision in Coopersmith v. Gold, 172 AD2d 982 [3rd Dept., 1991] a basis for granting defendant's motion. Coopersmith, according to the Third Department's decision and order, also involved a psychiatrist and a plaintiff patient with whom he became sexually involved; plaintiff Coopersmith asserted sexual exploitation and the transference psychiatric phenomenon. However, in Coopersmith the Court's decision actually left the medical malpractice cause of action intact, i.e., sustained denial of the branch of defendant's motion for summary judgment as to the medical malpractice claim, leaving such claim viable for determination by a jury. More importantly, in Coopersmith the Court's reference to Civil Rights Law §80-a was confined to the plaintiff's cause of action for battery (which the Court determined to be barred by §80-a); defendant's failure herein to note the fact that the Coopersmith decision was so confined insofar as it referred to Civil Rights Law §80-a is disconcerting to this Court in view of the fact that the medical malpractice cause of action therein was sustained expressly.

With respect to Guiles v. Simser, 9 Misc 3d 1083 [Broome County Supreme Court, 2005], also cited by defendant, the sexual relationship between attorney and client appeared to involve a "claim for malpractice based on breach of fiduciary duty" (and a plethora of other claims predicated on defendant's conduct with plaintiff), not a claim of medical malpractice. Moreover, the Guiles' Court's remarks concerning the bar of §80-a as to claims for seduction appears to be dicta and, in any event, confined to the issue of damages - which in that case were sought only for emotional injury (Guiles has not been cited by any appellate court of this State). Insofar as Guiles may be considered supportive of defendant's assertions herein, it is not controlling in the view of this Court. [*5]

Based on the foregoing, the defendant's motion insofar as predicated on Civil Rights Law §80-a (involving the first two of defendant's five contentions) is denied (see, Roy v. Hartogs, 95 Misc 2d 891 [App. Term 1st Dept., 1976]).

Defendant's third contention in support of its motion is that of plaintiff's "[a]ssumption of risk" (see affirmation of Russell Corker, dated December 29, 2008, at pp. 7-8). Defendant asserts, inter alia, that "plaintiff's primary assumption of risk entirely bars recovery; comparative fault principles do not apply" (ibid.). Notably, the defendant does not refer to the specific charges given to the jury which included comparative fault (PJI §2:36) which defendant requested. The assertion of this argument as a basis for setting aside the verdict is, under the circumstances, substantively without merit in addition to being procedurally defective. Defendant's citation of Turcotte v. Fell, 68 NY2d 432 [1986], a Court of Appeals' decision involving discussion of the doctrine of primary assumption of risk in the context of a jockey seriously injured in a horse race (a sport activity) is of general guidance only and, for the reasons stated, unavailing herein. Water v. State, 235 AD2d 623 [3rd Dept., 1997], also cited by defendant, is even more remote, involving Labor Law claims and the context of an application to file a late notice of claim (wherein the Court did not, in any event, apply the doctrine of primary assumption of risk). Accordingly, this third ground advanced by defendant is without merit and the branch of defendant's motion predicated thereon is denied.

The defendant further asserts that the verdict should be set aside because the evidence "as to the cause of plaintiff's divorce could as readily lead to the conclusion that it was caused . . . [by other factors]. . ., as to the conclusion that her relationship with defendant was its cause . . ."(ibid. at p.9). Defendant contends that where ". . .the evidence is capable of interpretation equally consistent with the presence or absence of a wrongful act or that a particular act was the proximate cause of plaintiff's injury or damage, the interpretation to be ascribed is that which accords with its absence [citing various cases]" (ibid., at p.9). First, defendant's contention as stated is confined to causation as it relates to the plaintiff's divorce and not the "mental distress" (which could encompass but would not necessarily be confined to the factor of the divorce alone) for which the jury awarded plaintiff $150,000. in damages.

The jury was able, within the proper scope of its consideration of the evidence, to attribute the cause of plaintiff's injury (damages, insofar as it awarded plaintiff same) to the malpractice it found the defendant to have committed. Stated differently, it cannot be said that the jury's determination as to causation of plaintiff's injuries (collectively) was against the weight of the evidence or erroneous as a matter of law (see, CPLR §4404). None of the cases cited by defendant for the general proposition advanced (quoted above) are actually controlling of this case or factually similar to it (see, e.g., Feblot v. N.Y.Times, 32 NY2d 486 [1973] and Johnson v. Tschiember, 7 AD2d 1029 [2nd Dept., 1959] each cited by defendant). Based on the foregoing, branch IV of defendant's motion is denied.

Defendant's final contention in support if its motion relates to the issue of punitive [*6]damages which defendant claims should not have been awarded in this case. Defendant asserts that the Court's submission of this issue to the jury "permitted the jury to award punitive damages based solely upon a finding that defendant's conduct . . . was reckless'" (ibid., at p.10) and relies pointedly on Roy v. Hartogs, 95 Misc 2d 891 [App. Term 1st Dept., 1976] (also cited by the plaintiff for another proposition) and Marmelstein v. Kehillat New Hempstead, 11 NY3d 15 [2008]. Marmelstein does not require the result urged by defendant upon this 4401 motion, as the Court of Appeals therein merely affirmed the Appellate Division, First Department's grant of defendant's motion for dismissal (pursuant to CPLR §3211(a)(7)) of causes of action for breach of fiduciary duty and intentional infliction of emotional distress. This Court finds controlling in this context and factual circumstance Randi A.J. v. Long Island Surgi Center, 46 AD3d 74 [2nd Dept., 2007] in which the Appellate Division, Second Department, identified the issue before it as "whether, in the young woman's subsequent action to recover damages, inter alia, for wrongful disclosure of confidential medical information, it was error for the trial court to submit the issue of punitive damages to the jury". That Court held that under the circumstances of that case that it was not error to do so. If the negligent wrongful disclosure of confidential patient information (concerning a plaintiff's abortion, to her parents) could be the basis for submission of the issue of punitive damages to the jury as in Randi A.J., it is this Court's view that, in the instant case, where defendant's conduct was repetitive and ongoing over months and clearly in violation of governing standards of patient care and physician codes of conduct (rather than the single instance of wrongful disclosure of patient information to the mother of a plaintiff who had an abortion, as in Randi A.J.) then certainly the protracted conduct of defendant can support the Court's determination to give the questions concerning punitive damages to the jury herein which in fact were given. More specifically, the standard applied by this Court in its instruction - recklessness - appears to have been upheld by the Randi A.J. court's conclusion, "[w]e decline to hold that, as a matter of law, the callous, reckless, or grossly negligent disregard of an individual's right to the privacy and confidentiality of sensitive medical information - a right protected by the declared public policy of this State - cannot be sufficiently reprehensible and morally culpable to support an award of exemplary damages [citations omitted]". Although the Appellate Division, Second Department's 2007 ruling in "Randi A.J." may be viewed as inconsistent with the Appellate Term's 1976 determination dismissing a claim for punitive damages in Roy v. Hartogs, 85 Misc 2d 891 [Appellate Term, First Dept., 1976], "Randi A.J." is determined by this Court to control the issue of punitive damages herein. It is evident that the relatively recent Second Department ruling in "Randi A.J." evinces a more flexible standard and approach on punitive damages than that applied - to a plaintiff's detriment - by the Appellate Term in 1976 in "Roy" (upon circumstances which were clearly closer to the factual circumstances at bar and also arguably more egregious in terms of results to the plaintiff therein (who was twice confined to the hospital in the wake of the doctor patient sexual relationship)); (see, also, Laurie Marie M. v. Jeffrey T.M., 159 AD2d 2 [2nd Dept., 1990] ("the defendant committed reckless or intentional acts certain to cause severe emotional distress. Those findings may also be a predicate for the award of punitive damages."). Based on the foregoing, this Court rejects defendant's fifth contention and denies the branch of its motion to set aside the verdict on the asserted grounds concerning punitive damages. [*7]

In summary, defendant's motion is denied in toto.

Settle judgment (see, 22 NYCRR §202.48).

The foregoing constitutes the decision and order of the Court.

Dated: April 2, 2009


Footnote 1: (See, CPLR §4405; Bertan v. Richmond Memorial Hosp. and Health Center, 131 AD2d 799 [2nd Dept., 1987]); Brzozowy v. Elrac, Inc., 39 AD3d 451 [2nd Dept., 2007]; Pioli v. Morgan Guar. Trust Co. of New York, 199 AD2d 144 [1st Dept., 1993] lv.app. den., 87 NY2d 801 [1995]).

Footnote 2: Also, the Marmelstein case was decided in the context of a CPLR §3211 motion to dismiss.