Kochan v Prumbs

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[*1] Kochan v Prumbs 2019 NY Slip Op 52102(U) Decided on December 5, 2019 Supreme Court, Cattaraugus County Walker, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 5, 2019
Supreme Court, Cattaraugus County

Christopher J. Kochan, Plaintiff,

against

Louis G. Prumbs, M.D., CINDY WICKSTROM, R.N., EXIGENCE MEDICAL OLEAN RADIOLOGY, P.C., OLEAN EXIGENCE MEDICAL OF OLEAN, PLLC, OLEAN GENERAL HOSPITAL and UPPER ALLEGHENY HEALTH SYSTEM, INC., Defendants.



87222



Counsel for Plaintiff

No Counsel; Plaintiff appeared pro se

Christopher J. Kochan, Pro se

P.O. Box 21

Little Valley, NY 14755

Counsel for Defendant Dr. Louis G. Prumbs

Kimberly A. Cline, Esq.

The Tarantino Law Firm

1500 Rand Building

14 Lafayette Square

Buffalo, New York 14203

Counsel for Defendant Olean Radiology

Matthew VanBeveren, Esq.

Gale Gale & Hunt, LLP

7136 East Genesee Street

Fayetteville, New York 13066

Counsel for Defendants Exigence Medical Olean Radiology, P.C. and Exigence Medical of Olean, PLLC

Charles R. Notaro , Esq.

Notaro & Laing, P.C. 217 Linwood Avenue

Buffalo, NY 14209

Counsel for Defendants Olean General Hospital, Upper Allegheny Health System, Inc., and Cindy Wickstrom, R.N.

Sally Broad, Esq.

Gibson McAskill & Crosby

69 Delaware Avenue, Suite 900

Buffalo, NY 14202
Timothy J. Walker, J.

Plaintiff, proceeding pro se, commenced this action with the filing of a summons and complaint in the Cattaraugus County Clerk's Office on August 27, 2018.

Plaintiff's claims are related to his presentation at Olean General Hospital's



(OGH's) emergency department on February 27, 2016, after he was involved in an altercation with the local police department. Plaintiff alleges that Defendants failed to treat, or negligently treated him for injuries he allegedly sustained as a result of the altercation.

On June 7, 2019, the Court held a status conference. Because of Plaintiff's pro se status, the conference was transcribed (a copy of which is attached to the Affidavit of Sally J. Broad, Esq., sworn to on August 26, 2019, as Exh. "E")

During the conference, various discovery issues were discussed and decided: Plaintiff was directed to respond to outstanding discovery demands, and was granted leave to file and serve a second amended complaint, limited to the addition of: (a) a cause of action for medical



malpractice against Olean Radiology, P.C. (which is no longer a party to this action pursuant to a voluntary stipulation of discontinuance), and (b) a claim for lost wages (Tr. At pp. 18-19, 31-32, 41).

The Court expressly stated that it was granting leave, without the necessity for motion practice, in an attempt to simplify matters and avoid a further amended complaint. This included the Court's direction that the Defendants need not respond to Plaintiff's first amended complaint (Tr. At pp. 36-37).

In contravention to the limited scope of the leave, Plaintiff filed and served a second amended complaint containing numerous new "claims" or "causes of action" against Defendants, including fraudulent misrepresentation, three (3) separate claims of gross negligence, financial fraud, fraudulent concealment, negligent hiring and retention, and intentional infliction of emotional distress. Plaintiff filed his second amended complaint on July 29, 2019 (Exh. "F" to the Broad Affidavit).

Along with his second amended complaint, Plaintiff served an amended verified bill of particulars.

By way of correspondence to Plaintiff dated July 31, 2019, OGH's counsel rejected the second amended complaint, pointing out that new claims were made outside the scope of the Court's directive, and requested that Plaintiff withdraw the second amended complaint.

In light of Plaintiff's refusal to withdraw the second amended complaint, each of the Defendants have filed motions to dismiss (relying, in part, on OGH's submissions).

Rather than abiding by the Court's June 6, 2019 directive, Plaintiff more than doubled the length of his complaint and tripled the number of "claims" alleged therein, thereby adding a myriad of new claims not approved by the Court.

The second amended complaint contains the following claims, as characterized in Plaintiff's own words:



Claim IFraudulent Representation

Claim IIGross Negligence

Claim IIIGross Negligence and/or Willful Misconduct - Head Injury

Claim IVGross Negligence - Shoulder Injury

Claim VLack of Consent and/or Financial Fraud and/or Fraudulent Representation

Claim VIFinancial Fraud

Claim VIIFinancial Fraud

Claim VIIIFraudulent Concealment

Claim IXDuty of Care

Claim XNegligent Hiring and/or Retention

Claim XIFalse Advertising

Claim XIIIntention Infliction of Emotional Distress

Having ignored the Court's directive, Plaintiff's second amended complaint is hereby stricken, and the original complaint is controlling (Sherman v. St. Elizabeth Med. Ctr., 145 AD3d 1461 [4th Dept. 2016]).

Turning to Plaintiff's original complaint, cognizable claims have ascertainable elements, and where those elements are absent from a complaint, a defendant may move pursuant to CPLR 3211(a)(7) to dismiss one or more causes of action for failure to state a cause of action (Caracaus v. Conifer Cent. Sq. Assoc., 158 AD3d 63, 72 [4th Dept. 2017] rearg den'd, 159 AD3d 1508 [4th Dept. 2018]). Each of the Defendants has so moved.

When considering a motion to dismiss pursuant to CPLR § 3211 (a)(7), a court must "accept the facts as alleged in the complaint as true, afford a plaintiff the benefit of every possible favorable inference, and determine only whether the facts alleged fit into any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Nowlin v. Schiano, 170 AD3d 1635 [4th Dept. 2019]).

However, a court is not required to accept as true factual allegations that are conclusory, inherently incredible or speculative (Myers v. Schneiderman, 30, NY3d 1, 11 [2017] [courts need not consider allegations consisting of bare legal conclusions], rearg denied, 30 NY3d 1009 [2017]; White v. Annucci, 161 AD3d 1428, 1429 [3d Dept. 2018]; Sonkin, v. Sonkin, 157 AD3d 414, 415 [1st Dept. 2018], lv to appeal denied, 32 NY3d 904 [2018]; McFadden v Schneiderman, 137 AD3d 1618, 1619 [4th Dept. 2016]). Moreover, "[d]ismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v. Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017] [citations omitted]; see also John R. Higgitt, Practice Commentaries, McKinney's Cons Laws of NY CPLR C3211:22 ["the [CPLR 3211(a)(7)]) motion is useful in disposing of actions . . . in which the plaintiff has identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action"]).

Further "[w]here evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one" (Borrerro v. Haks Group, Inc., 165 AD3d 1216, 1217 [2d Dept. 2018] [citations omitted]).

Here, Plaintiff's complaint consists of bare legal conclusions and constitutes a manifest attempt to harass each Defendant in this action. The alleged "claims" or "causes of action" consist of matters having no substance and no identifiable or discernable relation to cognizable claims. Instead, the complaint consists of a confusing succession of discrete facts, conclusions, comments and other subsidiary matters whose relevance to a particular cause of action can only be deemed obscure (see Rapaport v. Diamond Dealers Club, Inc., 95 AD2d 743, 744 [1st Dept. 1983]).

Mr. Kochan, as pro se litigant, acquires no greater right than any other litigant, and his decision to prosecute this action pro se has no effect on his burden to present a complaint that sets forth cognizable causes of action. This Court is not obliged to indulge the excesses of a pro se litigant, like Mr. Kochan, at the expense of judicial economy and fairness to opposing parties.

Indeed, proceeding pro se is no excuse for failing to comply with the pleading requirements of the CPLR, and is not a license to engage in frivolous conduct (CPLR §§105(c), and 3013-3016; see also Yule v. Comerford, 140 AD2d 981, 982 [4th Dept. 1988] ["[w]e know of no rule of law which would excuse a pro se litigant from compliance with procedural or other rules designed for the orderly conduct of action"]).

Rather than appearing as justiciable matter, Plaintiff's complaint reads as nothing more than a personal attack against Defendants, premised on legal conclusions and speculation lacking in factual allegations.

Dismissal of a complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery (Mid-Hudson Val. Fed Credit Union v. Quartararo & Lois, PLLC, 155 AD3d 1218, 1219 [3d Dept. 2017], affd, 31 NY3d 1090 [2018]).

As for medical malpractice claims, three (3) elements must be plead and proven: (a) the existence of a medical provider-patient relationship; (b) a deviation from the standard of care in providing care and treatment to the plaintiff patient; and (c) the deviation from the standard of care being a substantial factor in causing injury to the plaintiff patient (see Kingsley v. Price, 163 AD3d 157, 160-161 [4th Dept. 2018] [liability for medical malpractice may not be imposed absent a physician-patient relationship, either express or implied, because there is no legal duty in the absence of such a relationship] [citations and interior quotation marks omitted]; Yankus v. Kelly, 72 AD3d 1068, 1069 [2d Dept. 2010] [the requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice and evidence that such departure was a proximate cause of injury or damage]).

It is well settled that a cause of action for medical malpractice sounds in negligence, not intent (Scott v. Uljanov, 74 NY2d 673, 674 [1989] ["medical malpractice is simply a form of negligence"]; Twitchell v MacKay, 78 AD2d 125, 129-130 [4th Dept 1980] "[m]alpractice of course is negligence"; Jackson v. New York University Downtown Hospital, 856 N.Y.S.2d 24 [Sup. Ct. Kings 2007] [holding a hospital is not liable for intentional torts as same are "outside [*2]the scope of negligence and/or medical malpractice"]; Twitchell v. MacKay, 78 AD2d 125, 129-130 [4th Dept. 1980] [a "doctor in a malpractice case is ordinarily not an actor who intends to inflict an injury on his patient and any legal theory which presumes that intent appears to be based upon an erroneous supposition"] [emphasis added]).

Finally, a plaintiff must allege an injury to establish a prima facie case of malpractice (see Suits v. Wyckoff Heights Medical Center, 84 AD3d 487 [1st Dept. 2011]; Davis v. Klein, 224 AD2d 196 [1st Dept. 1996]). Absent from Plaintiff's complaint is a factual statement setting forth Defendants' alleged malpractice with any particularity.

While Plaintiff alleges a failure to diagnose and treat on the part of Defendants (and, as to Defendant Exigence, via a claim of vicarious liability), the allegation that Plaintiff presented to the OGH emergency department with a head injury merely because he had what he himself has referred to as a "remnant of blood" in his ear, simply does not withstand scrutiny. Likewise, Plaintiff's allegations pertaining to Defendants' failure or refusal to diagnose a head injury are vague and conclusory at best.

As such, the complaint shall be dismissed for failure to state a cause of action for medical malpractice on the part of any Defendant.

As to the "fraud claim", Plaintiff alleges that, by noting Plaintiff was unable to sign the Team Health Financial Responsibility form, Defendant Wickstrom committed fraud, and that Defendant Exigence is responsible for her actions under a theory of vicarious liability.

Upon review of the relevant form, Nurse Wickstrom specifically recognized that Plaintiff could not consent at that time. As such, she did not commit the Plaintiff to anything, let alone engage in fraudulent conduct.

As a general matter, a fraud claim requires a plaintiff to state with particularity circumstances surrounding an alleged "misrepresentation of a material fact, scienter, justifiable reliance, and injury" (Barrett v Glenda, 154 AD3d 1275, 1277 [4th Dept 2017]; see also CPLR §3016(b)].

As recently stated by the Court of Appeals in Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137 (2017):

To allege a cause of action based on fraud, plaintiff must assert "a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury. Critically, a false representation does not, without more, give rise to a right of action, either at law or in equity, in favor of the person to whom it is addressed. To give rise, under any circumstances, to a cause of action, either in law or equity, reliance on the false representation must result in injury. If the fraud causes no loss, then the plaintiff has suffered no damages. [29 NY3d at 142 (citations and interior quotation marks omitted)].

Here, not a single element of a fraud claim has been alleged. Plaintiff simply offers a legal conclusion relative to Nurse Wickstrom having appropriately filled out hospital paperwork relative to his appearance at the OGH emergency department on February 27, 2016.

Plaintiff does not allege that Nurse Wickstrom made a misrepresentation or material omission of fact which was false and known to be false, made for the purpose of inducing the [*3]Plaintiff to rely on it; that Plaintiff justifiably relied upon such misrepresentation or material omission of fact which was false; or that Plaintiff was injured thereby.

CPLR §8303-a and 22 NYCRR §130-1.1, grant the Court discretion to impose costs and sanctions upon a plaintiff for the filing and prosecution of this frivolous lawsuit. Plaintiff, a veteran of the court system,[FN1] is necessarily aware that his suit is entirely frivolous and its prosecution can only be understood as an attempt to harass Defendants.

CPLR § 8303-a defines frivolous conduct as follows:

In order to find the action, claim, counterclaim, defense or cross claim to be frivolous under subdivision (a) of this section, the court must find one or more of the following:(I) the action, claim, counterclaim, defense or cross claim was commenced, used or continued in bad faith, solely to delay or prolong the resolution of the litigation or to harass or maliciously injure another; (ii) the action, claim, counterclaim, defense or cross claim was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law. If the action, claim, counterclaim, defense or cross claim was promptly discontinued when the party or the attorney learned or should have learned that the action, claim, counterclaim, defense or cross claim lacked such a reasonable basis, the court may find that the party or the attorney did not act in bad faith.

Plaintiff's claims are clearly frivolous and brought solely to harass or injure Defendants. This action was commenced (and is being continued) in bad faith without any reasonable basis in law and fact, and cannot be supported by a good faith argument for an extension, modification or reversal of existing law, as established above.

Where a claim is "completely without merit" and cannot be supported by "reasonable argument" or an extension of existing law, a court may appropriately impose sanctions upon a plaintiff and/or her counsel, including costs and attorney's fees (Baxter v Javier, 140 AD3d 683, 685 (2d Dept. 2016); Miller v. Cruise Fantasies, Ltd., 74 AD3d 919 [2d Dept. 2010]; Ginther v Ginther, 52 AD3d 1250, 1251 [4th Dept. 2008]).

Where a court finds an action to be frivolous, sanctions are mandatory (Millennium of Rochester, Inc. v Town of Webster, 305 AD2d 1014, 1015 [4th Dept. 2003] ["the court shall award costs and reasonable attorney's fees to the successful party when an action is commenced or continued by a plaintiff and a court finds the action to be frivolous"] [emphasis added]; see also Place v Chaffee-Sardinia Volunteer Fire Co., 143 AD3d 1271, 1272-73 [4th Dept. 2016]; and Zysk v Kaufman, Borgeest & Ryan, LLP, 53 AD3d 482, 483 [2d Dept. 2008]).

Because of the frivolous nature of this action, and the conduct in which Plaintiff has engaged during the course of this litigation, including the filing and service of the second amended complaint in contravention of the limited relief granted, the imposition of costs and attorneys fees is warranted.

In Shreve v. Shreve, 229 AD2d 1005, 1006 [4th Dept. 1996], the Fourth Department observed:

Public policy mandates free access to the courts. However, when a litigant is abusing the judicial process by hagriding [harassing or tormenting] individuals solely out of ill will or spite, equity may enjoin such vexatious litigation. Thus, many courts have found it necessary to enjoin pro se litigants from commencing or continuing any further actions when it was found those litigants were abusing the judicial process (interior citations and quotation marks omitted).

In reaching its determination in Shreve, the Fourth Department cited to the decision Supreme Court in Muka v New York State Bar Ass'n, 120 Misc 2d 897 (Sup. Ct. Thompkins Co. 1983), wherein it was held that enjoining the vexatious plaintiff from engaging in further pro se actions was appropriate, stating:

Betty O. Muka has pursued legal actions and proceedings with persistence, vigor and disregard for logic and the rights of others. Most of her actions have been scandalous, vexatious and burdensome. She suspects conspiracies that do not exist. In this action, Mrs. Muka avoided paying an index fee by not obtaining an index number when this action was commenced. The burden of securing it then fell upon defendant when this motion to dismiss the complaint was initiated. Mrs. Muka has similarly avoided the burden of securing an index number in numerous other actions. (Muka, 120 Misc 2d at 905; accord In re Estate of Wagner, 114 AD3d 1235, 1237 [4th Dept. 2014]; and Miller v Lanzisera, 273 AD2d 866, 868 [4th Dept. 2000]).

Even at the outset of these proceedings, while reviewing deadlines in the Scheduling Order, Plaintiff sent an extensive email letter to the Court (64 pages, including the exhibits) (see Exh. "J" to the Affidavit of Kimberly Cline, sworn to on September 13, 2019). Most noteworthy, Plaintiff detailed his numerous lawsuits and alleged "nepotism and corruption" in Cattaraugus County.

This Court finds that Plaintiff has engaged in conduct similar to that of the plaintiff in Muka and other cases involving vexatious pro se litigants. Plaintiff is constantly filing documents and incessantly emailing and mailing various documents and items of "evidence" to the Court and the parties. Accordingly, it is hereby



ORDERED, for all the foregoing reasons, the action is hereby dismissed, pursuant to CPLR 3211(a)(7) on the merits and with prejudice; and it is further

ORDERED, that Plaintiff is hereby enjoined from filing any future actions in the New York State Court System with respect to the subject matter of the instant action, without prior judicial approval.

As to Plaintiff's motion, dated October 10, 2019, it is hereby denied, as moot.

This constitutes the Decision and Order of this Court. Submission of an order by the Parties is not necessary. The delivery of a copy of this Decision and Order by this Court shall not constitute notice of entry.



Dated: December 5, 2019

Buffalo, New York

____________________________________

HON. TIMOTHY J. WALKER, J.C.C.

Acting Supreme Court Justice Footnotes

Footnote 1:(see e.g., Kochan v. Schwabenbauer, W.D.NY Index No.: 1:17-CV-00452; Kochan v. Rieman et al. Catt. Co. Index No. 83866, commenced 6/26/15; and Kochan v. Catt. Co. Index No. 84755, commenced 7/5/16).