CYNA D. BARS, MD, (Justice Shlomo S. Hagler)

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1 FILED: NEW YORK COUNTY CLERK 11/26/2013 INDEX NO /2013 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 11/26/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTYOFNEWYORK: PART )( Inde)( No CYNA D. BARS, MD, (Justice Shlomo S. Hagler) Plaintiff, -against- PAULETT V. STARING, Ph.D., Defendant. PLAINTIFF'S ANSWER TO DEFENDANT'S : COUNTERCLAIMS, AND PLAINTIFF'S MOTION : TO STRIKE DEFENDANT'S AFFIRTIV DEFENSES : AN COUNTERCLAIMS )( CYNTHIA D. BARS, MD, by and through her attorney, Pamela D. Hayes, responds to Defendant's Counterclaims and Affirmative Defenses, and asserts Plaintiffs Affirmative Defenses as follows: Paragraphs Nos. 1 through 4 are Defendant's Answers to Plaintiff's Complaint. 5. Plaintiff moves to strike Defendant's Answer in,r 5 of the Counterclaim, because CPLR 3211(7) is not applicable (a)(7). 6. Plaintiff moves to strike Defendant's Second Affirmative Defense, because Plaintiff has previously withdrawn Count 2, Conversion, which Defendant consented to, and the Court has previously dismissed said Count 2 with the parties' Stipulation. Thus, it is no longer in e)(istence (see Court's Order) (Plaintiffs Emibit 1).

2 7. Plaintiff moves to strike Defendant's Third Affirmative Defense because Plaintiff has timely filed each Count of the Complaint. Furthermore, Plaintiff has previously offered an e)(ception which tolls and e)(tends a defense to the Statute of Limitations (see Plaintiffs EAAibit 1). 8. Plaintiff moves to strike Defendant's Fourth Affirmative Defense and asks that it be stricken, pursuant to CPLR 3211(a)(1), because Defendant has not provided the Court with any documents to establish she has paid back her loans from Plaintiff. (Defendant's allegation was previously rejected by this Court as part of Plaintiffs Motion to Strike, in Defendant's previous Cross Motion which was denied.) (See Plaintiffs EAAibit 1.) 9. Pláintiffmoves to strike Defendant's Fifth Affirmative Defense because she has previously admitted the Promissory Note is enforceable, and Plaintiff has provided documentar evidence to prove Defendant's admission (see Plaintiffs EAAibit 2, and EAAibit 5 (Admission by Defendant). 10. Plaintiff moves to strike Defendant's Si)(th Affirmative Defense because Defendant has admitted in previous pleadings that each of the amounts which she borrowed were loans as she negotiated each check with the word "loan" clearly marked in the memo section of Plaintiff s checks, as well as signing a Promissory Note. Furthermore, Defendant asked Plaintiff to e)(tend and forebear 2

3 during time she was promising to pay this matter back (see Plaintiff s EAAibit 3). Also, Defendant has not provided the Cour with any "time frame" of her purported activities, which caused her affrmative defense to be defective. 11. Plaintiff moves to strike Defendant's Seventh Affirmative Defense, because Defendant fails to enumerate which loans were a gift or which ones were forgiven. She also fails to plead with the specificity required by C.P.L.R. 3211(b)(1) what loans were gifts, or when the loans were forgiven, as well as any dates. 12. Plaintiff further moves to strike Defendant's Affirmative Defense No.7, in that Defendant has not admitted that she was employed by Plaintiff or had an agreement to perform any duties such as, cleaning, running errands, or providing help to search for insurance policies. Consequently, there was no obligation for Plaintiff to pay Defendant. Further, Defendant has not given any dates or plead with specificity as to her claim of employment, specifically the date when she did this work. 13. Plaintiff moves to strike Defendant's Eighth Affirmative Defense, because the Statute of Fraud Defense has no application in this instance. Furthermore, Plaintiff has not properly plead said defense. 14. Plaintiff moves to strike Defendant's Ninth Affirmative 3

4 Defense, in that it has no possible relevance to the case at bar. 15. Plaintiff moves to strike Defendants's Tenth Affirmative Defense, as Defendant has not sufficiently plead Waiver or Release with any sufficient or specific detail, and her conclusionar statements do not suffice the C.P.L.R. requirements. Offset, as 16. Plaintiff moves to strike Defendant's Eleventh Defense of she has not sufficiently plead Offset, or provided the nature of misconduct, which would entitle her to an offset. 17. Plaintiff moves to strike Defendant's Application to add additional defenses, because there is no reason why they should not be plead at this moment, and is a drain on the Court's time to continue to allow Defendant to re-plead and re-amend. COUNTERCLAIMS 18. Plaintiff denies Defendant's Counterclaim of Breach of Fiduciary Relationship (Duty), and moves to strike for the reasons previously stated (Statute of Limitations, etc.). 19. Admits. 20. Denies and moves to strike in that Defendant fails to plead with specificity what the Breach of Fiduciary Duty was, and the details of how Plaintiff 4

5 did this. Furhermore, Defendant does not give any specific dates; consequently, said counterclaims are bared as beyond the Statute of Limitations. 21. Admits. 22. Denies to the e)(tent Sag Harbor has a Suffolk County venue. Admits that other activity was in New York County, but denies said allegations Admits to the e)(tent that Cynthia D. Barnes is a licensed psychiatrist in the State of New York. Admits that Defendant was a patient of Dr. Barnes, until May, Denies that Defendant was a patient of Dr. Barnes any time after May, 2006 (see Plaintiffs Emibit 4). 25. Denies (see Plaintiffs Emibit No.4). 26. Denies to the e)(tent that Defendant stopped being Plaintiffs patient in May, 2006, and admits that Defendant had a doctor-patient relationship between thereafter denies she and Defendant shared any 2001 and May, Plaintiff doctor-patient relationship, and admits she and Defendant were friends and colleagues after her professional relationship ended, in May, 2006 (see Plaintiffs Emibit No.4). law, by 27. Admits to the e)(tent that this is a general proposition of which all licensed professionals are bound. Denies Plaintiff ever breached a 5

6 fiduciar trust. 28. Denies and moves to strike as Defendant has not provided any specificity as to the details of the duty which was breached, what was said and to whom, and the dates of when it was breached. 29. i. ( a) Denies and moves to strike, as Defendant is barred by the Statute of Limitations, 10/25/2003. Said counterclaim was filed in (b) (c) (d) ( e ) Denies and moves to strike, as Defendant is barred by the Statute of Limitations (4/7/2008 was the date of accrual). (f) (g) Admits in part to the e)(tent Plaintiff left a package at Defendant's place of business. Denies all other aspect of'r "g". (h) (i) Denies to the e)(tent Plaintiff has no basis to admit or deny. G) (k) Denies 6

7 (m) (n) Admits only to the e)(tent that Plaintiff left a sealed package at Defendant's place of business which included a birthday card. Defendant never spoke to anyone at Defendant's place of business, e)(cept to inquire if Dr. Starling was present at work. II. (a) Plaintiff neither admits or denies. (b) (c) (d) (e) (f) (g) (h) (i) Neither admits or denies. Denies 7

8 G) (k) (1) (m) (n) (0) (P) (q) (r) (s) III. (a) (b) (c) (d) (e) To the e)(tent Plaintiff can either admit or deny, Plaintiff admits Defendant visited her at her office only as a part of her therapy, between 2001 and May, (f) (g) 8

9 (h) (i) DEFENDANT'S SECOND COUNTERCLAIM OF INFLICTION OF EMOTIONAL DISTRESS 32. Denies to the e)(tent previously denied or admits to the e)(tent Plaintiff has previously admitted. 33. Denies the fact that Plaintiff ever treated Defendant after May, (a) (b) (c) Cannot form a basis to either admit or deny. (d) (e) (f) (g) (h) (i) G) 9

10 (k) (1) (m) (n) (0) (P) (q) (r) (s) 35. (a) (b) (c) (d) (e) (f) Denies to the e)(tent this happened after 2005 and beyond. (g) (h) (I)

11 Denies to the e)(tent they were previously denied. 40. Admits to the e)(tent Plaintiff has previously admitted or denied what Plaintiff has previously denied. 41. (a) (b) (c) (d) (e) Denies - previously alleged. Denies - previously alleged. Denies - previously alleged. Neither admits or denies. PLAINTIFF'S AFFIRMTIVE DEFENSES TO DEFENDANT'S COUNTERCLAIM Statute of Limitations 42. Plaintiff has alleged and has filed counterclaims which sound in the areas of Intentional Infliction of Emotional Distress, which has a one year statute of limitation; Negligent Infliction of Emotional Distress, which has a two-year Statute of Limitation; Breach of Fiduciar Duty, which carries a two-and-half or three-year Statute of Limitation, depending on the specific filing. 11

12 43. The Defendant is out of time, in that she brought said claims after the close of any legitimate statutory period allowing her to do so. Furthermore, Defendant has not provided any dates in certain instances, nor has she given the details of what she maintains Plaintiff has done to her, which constitute the basis of these counts. Breach of Fiduciary Duty 44. Defendant claims in,r,r (Count 1) that in 2003 Plaintiff breached her doctor-patient relationship with Defendant. Defendant has never filed any grievance against Plaintiff for any of these time periods, until Plaintiff sued Defendant in 2013, for breach of contract and she filed these counterclaims. Since breach of fiduciar duty is the same as (malpractice), Defendant has either two-and-a-half or three years from the date of occurrence in order to sue Plaintiff, which she did not do. As a result, Count 1 should be stricken, and dismissed. 45. In'r 29(1)(g) of Defendant's counterclaim, Defendant refers to a date of May 23, 2012, where Defendant maintains that she was not present at the time of the occurrences. She gives various hearsay and made-up conclusionary accounts of what purportedly happened as a result of this incident. At any event, Defendant was not being treated by Plaintiff in 2012 by her own account; consequently, there was no breach. 12

13 46. Plaintiff has rejected Defendant's counterclaim No.1 because, once again, Defendant's pleadings constitute defamatory and scandalous details about identified and unidentified individuals. This Court previously granted Plaintiff s Motion to Strke baseless scandalous allegations as they relate to these other people. As a result Defendant once again is disobeying the Court's Order and doing the very same thing which the Court has previously stricken (see Plaintiff s Emibit 1). As a result, Plaintiff rejects this counterclaim and in the alternative moves to have it stricken, and asks the Cour to instruct the Clerk to disallow these types of pleadings unless previously approved by this Court. Defendant then admits she self disclosed private information about herself to her subordinates, clearly divulging personal information about herself as well as making conclusionary statements as to what was supposed to have happened. Defendant admits she told her subordinates Dr. Barnes was her doctor (therapist/psychiatrist), and not Dr. Barnes. Dr. Barnes has denied these allegations, e)(cept to admit she left a package for Dr. Starling, and did not identify herself. Consequently, there is not a breach of any fiduciary duty on the part of Plaintiff, Dr. Barnes to support Defendant's first counterclaim (see C.P.L.R. 3211). Defendant's H(a) which refers to the years 2007 and 2009 fail for the 13

14 same statutory reasons. Statute of Limitations. They both indicate matters which Defendant previously filed with the Cour but was dismissed, as scandalous, libelous and a violation of privacy if it was true. 47. Plaintiff pleads the Statute of Limitation on Defendant's counterclaim of Intentional Infliction of Emotional Distress, The Statute of Limitation is one year for an Intentional Infliction of Emotion Distress action. See C.P.L.R. Defendant refers to events which happened in 2007, 2009, 2010, 2006, and All of said items in Defendant's counterclaim'r'r should be stricken because they are all outside of the one-year statute of limitation. Furthermore, Plaintiff has rejected Defendant's counterclaim because it makes the same defamatory, scandalous remarks that Defendant made when Plaintiff moved to have certain portions of Defendant's Answer stricken, and the Court granted Plaintiffs motion. Once again, Defendant stil names individuals which violates the Court's Order and continues to put her in a contemptuous posture. Thus, Plaintiff rejects Defendant's counterclaim No.2,,r,r 30-38, based on the Court's previously entered Order. Plaintiff further moves to strike and asks the Court to disallow Defendant's counter claim No.2, disallowing these types of pleadings based on the Court's previous Orders. Plaintiff further asks the Court to instruct the Clerk to disallow Defendant from filing these types of scandalous pleadings 14

15 unless specifically given permission to do so by the Court. Or, in the alternative, disallow Defendant from appearng pro se and requiring Defendant to retain counsel to properly represent her. 48. Plaintiff pleads the same defenses: Statute of Limitations and has rejected Defendant's counterclaim No.3,,r,r 39-44, for the same reasons previously stated. The Statute of Limitations for Negligent Infliction of Emotional Distress is two years. See C.P.L.R. 203(a) as how to compute. Defendant did not file said lawsuit until November, 2013, well beyond the statutory period. Furthermore, the items which Defendant details does not rise to the level of Negligent Infliction of Emotional Distress. Moreover, Plaintiff has rejected Defendant's counterclaim NO.3 for the reasons previously stated, and asks the Court for the same relief in,r,r AFFIRMTIVE DEFENSES: ASSUMPTION OF THE RISK 49. Even if Defendant's counterclaims could possibly be sustained for any reason, Defendant by her own conduct continued to befrend Plaintiff and continue her association with Plaintiff (see Plaintiffs Emibit 5). AFFIRMTIVE DEFENSES Failure to Exhaust Administrative Remedies 50. Defendant failed to ever bring a complaint of breach of fiduciar duty 15

16 against Plaintiff in a proper arena, i.e.: a complaint against Plaintiff should have been filed against Plaintiff at the New York State Deparment of Education, which is the licencing agency that deals with professional malpractice within the medical field. In this instance, Defendant did not file any complaints against Plaintiff. )Still until this date she has not done so.) This doctrine requires a Defendant filing a counterclaim to pursue all administrative remedies prior to looking to the Courts for relief. Said doctrine relieves the Courts of the burden of deciding questions entrusted to an agency and affords the agency an opportunity to prepare a record reflective of its e)(pertise and judgment in advance of judicial review. Latches and Equitable Estoppel 51. Defendant's failure to bring a lawsuit in this instance smacks of unclean hands. In this instance, Defendant utilized not bringing a lawsuit because she knew Plaintiff would justifiably rely on Defendant's statements that she would pay (see Plaintiff s Emibit 5). In this instance Defendant continued to ask Plaintiff for loans to help her out, and continued to promise Plaintiff that she would pay her back, as late as Thanksgiving (Plaintiffs Emibit 5) clearly shows Defendant admitting promising to repay loans to Plaintiff, as well as asking Plaintiff to take her places to shop. Clearly, Plaintiff should be allowed to plead 16

17 this defense which would defeat Defendant's counterclaims. Latches 52. Defendant has waited too long to file her counterclaims in an attempt to get the benefit of a loan and stopping Plaintiff from suing her. Res Judicata/Collateral Estoppel 53. In this instance, this Court issued two Orders which were properly filed with this Court. Plaintiff moved to strike the Defendant's Answer. The Motion was granted (see Plaintiff s Emibit 1). Defendant still continues along the same path of utilizing scandalous and libelous material to boost her counterclaims. The Court has previously told Defendant that this type of material was improper for pleading, yet Defendant maintains the same pattern by using names of different individuals who have nothing to do with her case. In addition to Defendant's counter suit being scandalous, libelous, and violative of the named individual's HIP AA Rights, Defendant has no standing to bring out these untruths and lies about other individuals. Thus, these principals ruled by this Court are the law of the case and Plaintiff should be able to avail herself of this defense. Furthermore, the Court rendered these decisions on October 17,

18 Defendant did not appeal the Court's Order within the 30-day statutory period. Consequently, Defendant is stuck with the Court's prior ruling which is undoubtedly the law of this case. Defendant is thus effectively estopped from bringing these tyes of lawsuits and Plaintiffs defenses! bar Defendant's counterclaims. WHREFORE, Plaintiff demands judgment as follows: (A) Rejects Defendant's counterclaim and moves to have it dismissed in its entirety. (B) In the alternative, Plaintiff moves to strike all three counts of Defendant's counterclaim and have the counterclaim dismissed in its entirety and bar its refiling unless this Court gives Defendant permission to refile, specific pleadings. (C) Dismissal of Defendant's Answer in its entirety. (D) That this Court set down an Initial Pretrial Hearing on Plaintiffs complaint immediately, or in the alternative allow Plaintiff permission to move for Summary Judgment, based on documentary submission. (E) Award Plaintiff reasonable attorney fees and costs of disbursement IPlaintiffs Exhibit 5 is a CD of a recording that Defendant left on Plaintiffs voice mail. A CD will be attached to pleading; however, it is a par of an which was downloaded to Plaintiff s counsel. 18

19 for Defendant's continued filing of a frvolous lawsuit via her counterclaims which required Plaintiff s counsel to continuously answer the same tye of pleading which were struck before. (F) Require Defendant to have approval of her pleading by the Cour before she can file any more pro se complaints or pleading. (G) Or in the alternative, bar Defendant from proceeding pro se and require she obtain counsel. Dated: New York, New York November 25,2013 AMLAD.HA 200 West 57th Street, Suite 900 New York, New York (212) (Phone) (212) (Fa)() pdhayesesq~aol.com Attorney for Plaintif TO: Clerk of Court, Part 17 Supreme Court, New York County Justice Shlomo S. Hagler (Courtesy Copy) Paulette V. Starling, Ph.D. 206 West 112th Street, PH New York, New York

20 VERIFICATION I i CYNTHIA_ D. BARS, MD, Plaintiff herein, has read the anne)(ed Plaintiffs Answer to Defendant's Counterclaims, and Plaintiffs Motion to Strike Defendant's Affirmative Defenses and Counterclaims, and swears to the truth of the content therein, under penalty of perjury, to the e)(tent th~ content is truthful or nased on information and belief. ~~~YxD CYNTHIA D. BARS, MD I Sworn to before me this tf day of November, 2013 pn/ D. HAYES NQTAR \ 'l I :UC, STATE OF Nr OUAUFIt:!J in NEW YORK CG NO. 02HA laJ~ f if COMMISSION EXPIRES QCT. 15, 2& j