Recant v New York Presbyt. Hosp.

[*1] Recant v New York Presbyt. Hosp. 2009 NY Slip Op 52195(U) [25 Misc 3d 1219(A)] Decided on October 15, 2009 Supreme Court, New York County Lobis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 15, 2009
Supreme Court, New York County

Dr. Robin Recant, Plaintiffs,

against

New York Presbyterian Hospital, Weill Cornell Medical College, Dina Abell, M.D., Elizabeth L. Auchincloss, M.D., Connie Cha, M.D., Sargam (Mona) Jain, M.D., Darlene Mitera, M.D., Marisa Perez-Reisler, M.D., Jonathan Raubh, M.D., Laura R. Sirulnik, M.D., James B. Wirth, M.D., Donna Recant, Defendants.



108183/09



Attorney for Plaintiff:

Steven M. Warshawsky, Esq.

350 5th Ave. fl.59

New York, New York 10118

212-601-1980

Attorney for Defendant Recant:

Deborah A. Schwartz, Esq.

210 Eleventh Avenue, Ste 1103

New York, New York 10001

212 582-0200

Attorney for Hospital Defendants:

Martin Clearwater & Bell LLP

220 East 42nd Street

New York, New York 10017

212 697-3122

Joan B. Lobis, J.

Defendant Donna Recant moves, pursuant to C.P.L.R. Rules 3211(a)(7) and 3211(c), for an [*2]order directing the entry of judgment in her favor on the ground that the pleading fails to state a cause of action and that the claims asserted against her are barred by statutory and common law privilege.

The bulk of the 69-page complaint sounds in psychiatric malpractice and other related causes of action. All of the other defendants, other than movant, are physicians and staff at New York-Presbyterian Hospital and Weill Cornell Medical College, which operate the Paine Whitney Psychiatric Clinic ("Payne Whitney"). For the purposes of this motion, the court is only concerned with the claims that are asserted against defendant Donna Recant ("defendant Recant"), who is the younger sister of plaintiff Robin Recant.

When considering a motion under Rule 3211(a)(7), the court must accept the facts alleged in the complaint as true and accord them every favorable inference. Delran v. Prada USA, Corp., 23 AD3d 308 (1st Dep't 2005). The complaint sets forth that it is an action for "false imprisonment, assault and battery, psychiatric malpractice, fraud, defamation, breach of fiduciary duty, and intentional infliction of emotional distress" as a result of plaintiff's "unjustified and coerced hospitalization" at Payne Whitney during two separate admissions, for a total of 101 days. Plaintiff alleges that since the birth of plaintiff's twins in September 2002, defendant Recant has engaged in a "selfish and illegal campaign" to take plaintiff's children away from her. As part of this conduct, plaintiff alleges that defendant Recant has made false accusations that plaintiff suffers from a mental illness, and that defendant Recant was using her "power and influence" as a former state court judge to "steal" the twins from plaintiff. Plaintiff contends that in or about April 2008, her sister tried to obtain temporary guardianship over the twins, but plaintiff refused to sign the document giving defendant Recant temporary custody. Plaintiff further contends that in May 2008, she was forced to sign the document, after defendant arranged a meeting with a staff psychiatrist at New York University and defendant Recant's therapist, at which time plaintiff was allegedly threatened with a trip to Bellevue Hospital if she did not sign the document. Plaintiff claims that over the next weeks, defendant Recant retained custody of the children, and that plaintiff feared that her sister was using her former position as a judge to obtain custody over plaintiff's children. During this period, defendant Recant apparently commenced an action in family court to obtain custody of plaintiff's children; this proceeding is still pending. Plaintiff states that she repeatedly asked for the return of her children, but refused.

Plaintiff contends that she voluntarily presented herself at the emergency room at New York-Presbyterian Hospital on June 9, 2008, at approximately 10:00 p.m., for a psychiatric evaluation. Plaintiff states that she told the emergency room nurses that she was there because her sister threatened to take her children from her if she did not have a psychiatric evaluation. The examining physicians allegedly pressured plaintiff to give them defendant Recant's telephone number; the doctors then had what plaintiff describes as an unauthorized conversation with defendant Recant. Plaintiff alleges that during this conversation, defendant Recant made numerous false and malicious statements about plaintiff's medical and personal history.

Some hours later, on June 10, at 1:00 a.m., one of the defendant physicians diagnosed plaintiff with major depressive episode with psychotic features, and admitted her to Payne Whitney; [*3]plaintiff was presented with a voluntary admission form to sign. Plaintiff refused to sign the form, but claims that she was threatened with involuntary commitment if she did not sign the admission form. Plaintiff signed the form, and was admitted to Payne Whitney at approximately 1:00 a.m. on June 10.

Later that same day, plaintiff alleges that she submitted a written request to leave Payne Whitney. Rather than release her, or seek a court-ordered commitment, the medical staff allegedly pressured and threatened plaintiff into "retracting" her sign-out letter. Plaintiff asserts that her diagnosis was based, in part, on conversations between the medical staff and defendant Recant.

The complaint sets forth statements that are alleged to have been made by defendant Recant at "family meetings" that were held at Payne Whitney on July 8 and July 21, 2008, at which the third sister, Jane Recant, was also present, as were doctors and defendant Recant's therapist. Plaintiff remained at Payne Whitney through July 23, when she was discharged. After her discharge, plaintiff was required to attend an outpatient program. On August 19, 2008, during a session of the outpatient program, defendant James B. Wirth, M.D., allegedly ordered plaintiff to be escorted to the emergency room for readmission to Payne Whitney.

Plaintiff was evaluated by hospital staff on August 19; plaintiff further alleges that staff members spoke to defendant Recant, without plaintiff's permission, and spoke to defendant Recant's therapist, under the mistaken impression that she was plaintiff's therapist. Plaintiff was presented with a voluntary admission form to sign, and alleges that she was again intimidated and coerced by the medical staff into signing the form. During this time, she alleges that she was given electro-shock therapy and other invasive treatments. Plaintiff contends that she made repeated requests for voluntary discharge, but her requests were denied. Various dates were set forth for discharge, but each date was pushed back. According to plaintiff, on October 6, Dina Abell, M.D., noted that she "spoke at length" with plaintiff's sister, and that defendant Recant was angry at the prospect of plaintiff's discharge in the upcoming weeks. Plaintiff states that she remained at Payne Whitney for a total of 58 days, until October 16, 2008, when she was released.

Plaintiff asserts three causes of action against defendant Recant. The first cause of action, for defamation, asserts that defendant Recant made statements to the staff at Payne Whitney that had a tendency to expose plaintiff to "hatred, contempt, ridicule, and disgrace." Plaintiff asserts that defendant Recant communicated knowingly false statements to hospital staff and that these statements were a proximate cause of plaintiff's false imprisonment at Payne Whitney and the resulting assault, battery and malpractice to which plaintiff was subjected. The second cause of action alleges a claim of breach of fiduciary duty. The third cause of action alleges intentional infliction of emotional distress

As set forth above, this is a motion to dismiss, pursuant to Rules 3211(a)(7) and 3211(c); the latter rule permits a court to convert a motion to dismiss to a motion for summary judgment, after giving notice to the parties. Defendant's motion is not supported by an affidavit based on personal [*4]knowledge. Rather, defendant Recant's counsel submitted an affirmation setting forth that the motion is a motion to dismiss, and annexes the complaint as the only exhibit. The memorandum of law is referred to as a motion to dismiss. Although no other affidavits or exhibits are annexed, and defendant Recant styles the motion as a motion to dismiss, in her memorandum of law, defendant Recant attempts to hold plaintiff to the standard of opposing a motion for summary judgment. Given that defendant did not treat this motion as a motion for summary judgment, and that plaintiff, in response, did not submit anything other than a memorandum of law, this court declines to convert this pre-answer motion into a motion for summary judgment. Contra, MacDonald v. Prudential Securities Inc., 247 AD2d 346, 347 (1st Dep't 1998); Gelman v. Quicke, 224 AD2d 481, 482 (2d Dep't 1996) (finding that conversion to a summary judgment motion was appropriate where both parties were "laying bare their proof" and charted a summary judgment course).

In support of her motion to dismiss the defamation claim, defendant Recant relies on the statutory privilege that is set forth in Social Services Law § 473-b. This section provides that

[a]ny person who in good faith believes that a person eighteen years of age or older may be an endangered adult or in need of protective or other services, pursuant to this article, and who, based on such belief either:

(a) reports or refers such person to the department [of social services], office for the aging, or any local social services district office or designated area agency on aging, law enforcement agency, or any other person, agency or organization that such person, in good faith, believes will take appropriate action; or

(b) testifies in any judicial or administrative proceeding arising from such report or referral shall have immunity from any civil liability that might otherwise result by reason of the act of making such report or referral or of giving of such testimony.

There is only one reported decision which addresses this statute, Mantis v. United Cerebral Palsy Ass'n of Nassau County, Inc., 173 Misc 2d 778 (Sup. Ct. Nassau Co. 1997). In Mantis, plaintiff-daughter—described as a competent, twenty-five-year-old quadriplegic woman with cerebral palsy—complained of physical abuse by her mother to staff at the adult day treatment program that she attended at United Cerebral Palsy Association ("UCP"). As a result of the complaint, UCP arranged for plaintiff-daughter to obtain overnight accommodation. Plaintiff-mother commenced an action, in which she also named her daughter as a plaintiff, alleging causes of action for, inter alia, intentional infliction of emotional distress, defamation and false imprisonment. UCP moved for partial summary judgment, based on Social Services Law § 473-b. The court granted UCP's motion, finding that "UCP has amply demonstrated its good faith in reporting allegations of abuse" (which was based, in part, on a videotape in which the daughter admitted the abuse and admitted being pressured by her mother to recant the allegations), while plaintiffs "have submitted no evidence, in admissible form, establishing a triable issue of fact with regard to any bad faith by UCP." Mantis, supra , 173 Misc 2d at 781. [*5]

In contrast to Mantis, in which there was overwhelming evidence of UCP's good faith, defendant Recant has failed to set forth any facts in support of her claim of a good faith basis to make statements concerning plaintiff's need for psychiatric services. In her complaint, plaintiff alleges that defendant Recant made the allegations in bad faith, based on defendant Recant's jealousy toward plaintiff and defendant Recant's desire to take plaintiff's children from her. At this juncture, these allegations must be accepted as true, and defendant's failure to come forward with evidence of her good faith, which is a requirement for immunity under § 473-b, prohibits this court from relying on this statutory immunity at this time.

Defendant Recant also relies on the "common interest" privilege in support of her contention that the defamation claim must be dismissed. Certain types of statements, depending upon the context in which they are made, are considered privileged communications and are not subject to a claim for defamation. Courts have long recognized that a "conditional, or qualified, privilege extends to a communication made by one person to another upon a subject in which both have an interest.'" Liberman v. Gelstein , 80 NY2d 429, 437 (1992), quoting Stillman v. Ford, 22 NY2d 48, 53 (1968). This is referred to as the "common interest" privilege. Defendant Recant argues that her statements were made to medical personnel, who "had a common interest in the subject matter of the conversation." Garcia v. Puccio, 62 AD3d 598, 599 (1st Dep't 2009). She seeks to have this issue determined on her motion to dismiss.

This issue cannot be determined on a motion to dismiss. This court is bound to follow the First Department decision in Garcia v. Puccio, 17 AD3d 199, 201 (1st Dep't 2005), which holds that a claim of qualified privilege is an affirmative defense, to be raised in defendant's answer, and then in a summary judgment motion. See also, Demas v. Levitsky, 291 AD2d 653 (3d Dep't), lv. dismissed, 98 NY2d 728 (2002); Dickert v. Massa, 2007 WL 3128234 (Sup. Ct. NY Co. 2007) (citing Garcia, and recognizing that the question of qualified privilege is premature on a motion to dismiss). This holding is consistent with Mantis, supra , in which the issue of good faith under Social Services Law § 473-b was determined in the context of a motion for partial summary judgment. It is impossible on these papers to determine whether or not there is evidence of actual malice or ill will, which must await a motion for summary judgment. See, Gelman v. Quicke, supra , 224 AD2d 481; see also, Shapiro v. Health Ins. Plan of Greater New York, 7 NY2d 56, 63 (1959) (noting that plaintiff has a "positive requirement [to] show evidentiary facts and . . . a motion for summary judgment may not be defeated by charges based upon surmise, conjecture and suspicion.'") (citations omitted). After a properly supported motion for summary judgment is made, the burden then shifts to plaintiff to demonstrate that the statements are false and uttered with malice. "Falsity is not sufficient for an inference of malice. It must be * * * consistent only with a desire to injure the plaintiff to justify * * * [sending] the question of malice to the jury.'" Shapiro, supra , 7 NY2d at 61 (asterisks and brackets in original), quoting Fowles v. Bolen, 30 NY 20, 1864 WL 4116 (1864). For all of these reasons, the motion to dismiss the defamation claim against defendant Recant, which is set forth in the first cause of action, must be denied, without prejudice to the bringing of a motion for summary judgment.

In so doing, the court rejects defendant Recant's contention that the defamation claim must be dismissed because plaintiff failed to plead special damages. Plaintiff acknowledges in her [*6]memorandum of law that she has not pleaded special damages within the meaning of New York law. She argues that the statements constitute slander per se, since the statements "tend to injure another in his or her trade, business or profession." Liberman, supra , 80 NY2d at 435. A plaintiff is not required to allege or prove special damages if statements constitute slander per se. Id. Contrary to defendant Recant's contention, the fact that these remarks were not made publicly, but were made only to plaintiff's treating psychiatrists, who she presumes "would maintain them in confidence," does not constitute a basis to reject the claim of slander per se on a motion to dismiss. The factual circumstances in which the statements were made goes to the question of malice, qualified privilege and damages, not whether or not the statements constitute slander per se as a matter of law. On a properly supported motion for summary judgment, this court can fully explore whether any or all of the numerous statements attributed to Defendant Recant may not be actionable because they are opinion; because they may be truthful; or because there is a qualified privilege. But, since plaintiff is a physician, comments that plaintiff, inter alia, "abused Percocet during pregnancy" and "has a long history of depression, manic depression, borderline personality disorder, and Percocet abuse" constitute statements that cannot be dismissed as non-defamatory at this stage of the litigation. See Restatement (Second) of Torts § 573, comment c ("Statements that a physician is a drunkard or a quack, or that he is incompetent or negligent in the practice of his profession, are actionable.")[FN1]

The second cause of action alleges a claim of breach of fiduciary duty. Plaintiff's counsel acknowledges that he "has not identified any reported cases finding (or not finding) a fiduciary duty under circumstances similar to those presented here;" nevertheless, he claims that there exists a fiduciary duty in this case. To establish a breach of fiduciary duty, plaintiff must demonstrate "the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant's misconduct." Kurtzman v. Bergstol, 40 AD3d 588, 590 (2007). Parties have a fiduciary relationship " when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation.'" EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19 (2005), quoting Restatement (Second) of Torts § 874, Comment a. A fiduciary relationship is not inherently present merely because plaintiff and defendant Recant are sisters; each case is fact-specific, and must be decided based on the factual circumstances alleged. Carnivale v. Carnivale, 2009 WL 2877592 (Sup. Ct. Queens Co. Sept. 3, 2009). It is apparent from the allegations in the complaint that plaintiff "placed no particular trust or confidence in the defendant's integrity or fidelity." Chasanoff v. Perlberg, 19 AD3d 635, 636 (2d Dep't 2005) (brother established that no fiduciary relationship existed between himself and his sister). Here, plaintiff sets forth hateful allegations regarding defendant Recant's personal and professional conduct. Having set such allegations forth, and believing them to be true, it is impossible to claim simultaneously that plaintiff placed great trust in defendant Recant's integrity and fidelity. The allegations are the antithesis of a fiduciary relationship between these sisters. Since there is no fiduciary relationship, this cause of [*7]action must be dismissed.

The cause of action alleging intentional infliction of emotional distress is dismissed. "[W]here the conduct complained of falls well within the ambit of other traditional tort liability," such as a defamation claim, a cause of action for intentional infliction of emotional distress cannot lie. Demas v. Levitsky, supra , 291 AD2d at 660, quoting Fischer v. Maloney, 43 NY2d 553, 558 (1978).

Accordingly, the motion to dismiss is denied with respect to the first cause of action, and is granted with respect to the second and third causes of action. It is

ORDERED that the motion to dismiss is granted in part, and the second and third causes of action of the complaint are dismissed; and it is further

ORDERED that defendant Recant is directed to serve an answer to the complaint within twenty (20) days after service of a copy of this order with notice of entry; and it is further

ORDERED that the parties are directed to appear for a preliminary conference on Tuesday, November 24, 2009 at 10:00a.m., in Courtroom 345, 60 Centre Street, New York, New York.

This constitutes the decision, order, and judgment of the court.

Dated: October, 2009

______________________________

JOAN B. LOBIS, J.S.C. Footnotes

Footnote 1: Plaintiff states that since 2002, she has been employed by the New York City Department of Health and Mental Hygiene, and works for Bureau of Sexually Transmitted Disease Control. During the time period that is the subject of this action, plaintiff's job titles were Director of Medical Training and Education, and Medical Director for the Region II STD/HIV Prevention Training Center, which she describes as a multi-million dollar program funded by the United States Centers for Disease Control and Prevention.