Rizzo v Estate of Joseph C. Polifrone

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[*1] Rizzo v Estate of Joseph C. Polifrone 2019 NY Slip Op 51239(U) Decided on August 8, 2019 Supreme Court, Bronx County Capella, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 8, 2019
Supreme Court, Bronx County

Angelique Rizzo, Plaintiff,

against

Estate of Joseph C. Polifrone, MD, ANTHONY POLIFRONE, and ANNA ROSE POLIFRONE, MD, Defendants.



300995/09



Plaintiff's Attorney

Katrina M. Jones, Esq.

Phyllis Gelman & Assoc. LLC

225 Broadway, Suite 3504

New York, New York 10007

(212)557-0559

Attorney for defendant, Anthony Polifrone

Braunfotel & Frendel, LLC

49 Maple Avenue

New City, New York 10956

(845)634-7701

Attorney for defendant, Estate of Joseph Polifrone

Martin, Clearwater & Bell, LLP

245 Main Street, 5th Floor

White Plains, New York 10601

(914)328-2969

Attorney for Defendant, AnnaRose Polifrone

Danielle M. Pomeraniec, Esq.

Koster, Brady & Nagler, LLP

One Whitehall St., 10th Floor

New York, New York 10004

(212)248-8800
Joseph E. Capella, J.

The following papers numbered 1 to 4 read on this motion, noticed on March 25, 2019, and duly submitted on May 13, 2019.



PAPERS

NUMBERED

NOTICE OF MOTION AND AFFIDAVITS ANNEXED1

ANSWERING AFFIDAVIT AND EXHIBITS 2

MEMO OF LAW 3

REPLY AFFIDAVIT AND EXHIBITS4UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:

The defendant, Anna Rose Polifrone, M.D. (Dr. Rose), moves for summary judgment (CPLR 3212) and dismissal of the instant action which sounds in medical malpractice and sexual harassment. Plaintiff saw decedent-defendant, Joseph C. Polifrone, M.D., on January 5, 2005, and was diagnosed with a concussion, cervical sprain and possible lumbosacral iliac joint injury. Dr. Joseph Polifrone prescribed physical therapy, and referred plaintiff to Dr. Rose, a physiatrist, who cleared plaintiff for physical therapy after performing a physical exam on May 5, 2005. The physical therapy was to be performed by defendant, Anthony Polifrone (Anthony), who was studying at Dominican College to become a physical therapist. According to plaintiff, during a physical therapy session, she was sexually assaulted by Anthony. Plaintiff alleges, in sum and substance, that Dr. Rose improperly prescribed and/or administered medications, improperly prescribed physical therapy, failed to properly diagnose and treat, knew or should have known that Anthony would engage in sexual abuse, and failed to employ reasonable and proper steps, procedures and practices to avoid injury to plaintiff.

As summary judgment relief is being sought, Dr. Rose must make a prima facie showing of an entitlement to same as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. (Alvarez v Prospect, 68 NY2d 325 [1986].) Therefore, with regards to the medical malpractice claim, Dr. Rose must provide evidentiary proof in the form of expert opinions and/or factual evidence that establishes that she did not deviate from accepted standards of care and practice, and as such, her conduct was not a proximate cause of plaintiff's injuries. (Fileccia v Massapequa, 99 AD2d 796 [2nd Dept 1984]; affirmed 63 NY2d 639 [1984].) As for the sexual harassment claim, it is well settled that an employer has a duty to exercise reasonable care to refrain from knowingly employing and/or retaining an employee with known dangerous propensities that would present a foreseeable risk of harm to others. (Haddock v City of [*2]New York, 140 AD2d 91 [1st Dept 1988]; Detone v Bullit, 140 AD2d 278 [1st Dept 1988].) Although the motion papers by Dr. Rose do not concede that Anthony was her employee, it does allege that she was not aware of any complaints against Anthony for sexual harassment prior to commencement of this action. Dr. Rose includes in support of her motion the affirmation of Dr. Joseph Jeret, a board-certified neurologist who is an expert in neurophysiology and pain management. Dr. Jeret opines that every aspect of Dr. Rose's treatment was in keeping with the standards of good and accepted physical medicine and rehabilitation practice. Should Dr. Rose establish a prima facie showing for summary judgment, then the burden shifts to plaintiff to produce evidentiary proof in admissible form sufficient to create issues of fact to warrant a trial (Alvarez, 68 NY2d 325).

In his expert affirmation, Dr. Jeret notes that Dr. Rose did not prescribe any oral medications, and properly administered intravenously the medications Marcaine and Dexamethason in standard quantities. And Dr. Rose monitored plaintiff for a period of time after administering these injections to ensure no negative reaction. He also notes that it was not Dr. Rose who prescribed physical therapy, in fact it was Dr. Joseph Polifrone. Dr. Rose merely cleared plaintiff for physical therapy after properly conducting a physical exam. It appears that some twelve hours after receiving the injections, plaintiff went to a local hospital because she believed she was experiencing a reaction to the medication(s). However, the hospital records reveal that plaintiff was able to ambulate without assistance, and there is nothing in these records that concludes that plaintiff was experiencing a reaction to the injection(s). In addition, plaintiff did not experience any lasting effects as she testified that the reaction she experienced stopped later that evening.

Dr. Rose informed plaintiff that Anthony was a physical therapy student fulfilling a requirement of his doctorate program, and gave plaintiff the option to seek physical therapy elsewhere. Dr. Rose was present for each administration of physical therapy Anthony performed at her Pearl River office, and Dr. Joseph Polifrone was present for each administration of physical therapy Anthony performed at the Brooklyn office. Dr. Jeret further notes that Dr. Rose met with Anthony on a weekly basis to review the patients who received physical therapy to determine how the patients were responding. According to Dr. Jeret, Dr. Rose's conduct was in keeping with good and accepted practice, and was not a proximate cause of injury to plaintiff. Dr. Jeret does not opine as to any alleged psychological injuries, which plaintiff attributes exclusively to Anthony's sexual harassment. There is no evidence to suggest that plaintiff was injured by the physical therapy administered by Anthony. And according to Dr. Rose, she had no notice that Anthony had any dangerous propensities that would present a foreseeable risk of harm to her patients. (Haddock, 140 AD2d 91; Detone, 140 AD2d 278.) Based on the aforementioned, the Court is satisfied that Dr. Rose established a prima facie showing for summary judgment, thereby shifting the burden to plaintiff to produce evidentiary proof [*3]in admissible form sufficient to create issues of fact to warrant a trial (Alvarez, 68 NY2d 325).

In opposition, plaintiff submits an attorney affirmation, which is insufficient to raise a triable issue of fact in a summary judgement motion. (Zuckerman v City of New York, 49 NY2d 557 [1980].) Plaintiff also submits a psychological report done by psychologist, Linda Collinsworth, PhD; however, the report, which is not sworn to before a notary, is not in admissible form (Grasso v Angerami, 79 NY2d 813 [1991; Feggins v Fagard, 52 AD3d 1221 [4th Dept 2008]]), and only addresses the issue of damages. Moreover, as a psychologist, Dr. Collinsworth is unqualified to render an opinion as to the standard of care for physical medicine and pain management. (De Hernandez v Lutheran, 46 AD3d 517 [2nd Dept 2007].) As already noted, there is no evidence to suggest that plaintiff was injured by the physical therapy administered by Anthony. Plaintiff does allege that expert medical evidence is not necessary because allegations of sexual harassment during the course of a physical exam can be assessed under "common everyday experience." However, the alleged sexual harassment is directed exclusively against Anthony - there is no allegation that Dr. Rose sexually harassed plaintiff. Hence, whether plaintiff experienced sexually harassment by Anthony resulting in psychological injuries, is unrelated to the care and treatment rendered by Dr. Rose. And to the extent that plaintiff seeks to hold Dr. Rose liable for the alleged sexual harassment perpetrated by Anthony, there is no proof that Dr. Rose was on notice that Anthony had any dangerous propensities that would present a foreseeable risk of harm to her patients. (Haddock, 140 AD2d 91; Detone, 140 AD2d 278.) Plaintiff's further suggestion that Dr. Rose violated New York State and New York City Human Rights Laws, which prohibit gender discrimination and sexual harassment in the workplace, is nonsensical because plaintiff was not an employee of Dr. Rose. Based on the aforementioned, plaintiff did not meet her burden to warrant a trial, the summary judgment motion by Dr. Rose is granted, and the action is dismissed. The clerk is directed to enter judgment accordingly.

Dr. Rose is directed to serve a copy of this decision/order with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.



8/8/19

Joseph E. Capella, J.S.C.