SUPREME COURT - STATE OF NEW YORK. SEQUENCE No. I, 2, 3, 5, 6, 7. Defendant.

Transcription

1 SHORT FORM ORDER Present: SUPREME COURT - STATE OF NEW YORK HON. JOSEPH A. DE MAO TAMR AVNI, Jointly with her disabled son, LIOR AVNI a/k/ a LIOR J. AVNI, both acting pro se, Plaintiff, against- Justice TRIAL/lAS, PART 5 NAS SAU COUNTY MOTION DATE: July 29, 2005 INDEX No. 8049/05 SEQUENCE No. I, 2, 3, 5, 6, 7 PILGRIM PSYCHIATRIC CENTER OF W. BRENTWOOD, NY (PPC); HEALTH PLAN OF NEW YORK (" HIP" ), NASSAU HEALTH CARE CORPORATION (" NHCC" ), HOWARD KIRSCHEN, M. D., INDERJIT SINGH, M. D., JACOB NINAN, M. D., AND OTHER ALAN WEINSTOCK, DR. JACOB NINNAN, M. D. OF OMH/NUMC), AND OTHER AlDERS AND ABETTERS TO BE JOINED HEREIN AFTER DISCOVERY, Defendant. The following papers read on this motion: Notice of Motion to Dismiss and Supporting Papers Notice of Motion to Dismiss and Supporting Papers Defendant Heal th Insurance Plan of Greater New York, Inc I s Memorandum of Law in Support of Motion to Dismiss Notice of Cross Motion Affirmation in Opposition to Plaintiffs I Cross- Motion and in Further Support of Defendant I s Motion to Dismiss Affirmation of John F. Bol ton in Opposition to Plaintiffs Cross Motion and in Further Support of Motion to Dismiss Notice of Motion Affidavi t in Reply on Defendant Ki tschen I s Motion for Judgment of Dismissal and in Opposition to the Plaintiffs I Motion for Summary Judgment and for an Order Dismissing Various Defenses Answering Affidavit Notice of Cross-Motion

2 Affirmation in Opposition to Plaintiffs I Cross- Motion and in Further Support of Defendant I s Motion to Dismiss Notice of Filing Two Affidavits by Plaintiffs in Reply and Opposition to Motion to Dismiss of Defendant " HIP-NY" and Supporting Affidavit of John F. Bolton, Esq. Reply Aff idavi ts of Plaintiff Supplemental Reply Affidavit of Plaintiff Original Countermotion of Plaintiffs Tamar Avni and Lior Avni, Both Pro Se, to Motions to Dismiss of Defendants Kirschen and " HIP-NY", moving to strike Defenses and to enter- Defaul t Judgment Reply Affidavi ts of Plaintiff Combined motion and cross motion by defendant Nassau Health Care Corporation (NHCC) to dismiss the complaint pursuant to CPLR 3211(a) (5) and Public Authority Law 3415; the motion by defendant Heal th Insurance plan of Greater New York, Inc. to dismiss the complaint pursuant to CPLR 3211 (a) (1), (HIP) ( a) (5) and (a) (7); the motion by defendant Howard Kirschen, M. D. to dismiss the complaint pursuant to CPLR 3211(a) (5) and (a) (7); and the cross motion by defendant Jacob Ninan, M. D. to dismiss the complaint pursuant to CPLR 3211 (a) (1), granted as hereinafter provided. (a) (5) and (a) (7) are The two cross motions by plaintiffs for default judgment against HIP, Howard Kirschen, M. D., Pilgrim Psychiatric Center and Inderj it Singh and to dismiss the implied defenses " of HIP, and the cross motion by plaintiffs (incorrectly labeled countermotions) for default judgment against HIP and Howard Kirschen, M. D., are denied.

3 Pursuant to the order of the Hon. Lawrence J. Brennan dated March 4, 2005, a prior action, based on similar facts, brought by Dov Avni on behalf of his adult son, Lior Avni, was dismissed. No notice of appeal was filed in connection with that action. In an apparent attempt to circumvent the deficiencies of the causes of action alleged, and Dov Avni' s lack of standing, a new action has been commenced by Tamar Avni, jointly with her disabled son, Lior Avni, both acting pro se, to recover for the bad acts (malpractice) commi t ted by the various defendants in allegedly abducting " Lior from the HIP mental health facility in Woodbury, New York, on November 22, 2002, transferring him, against his will, to the NHCC facility at 2201 Hempstead Turnpike, East Meadow, N. Y., and further confining him at defendant Pilgrim Psychiatric Center of W. Brentwood, N. (Pilgrim Psychiatric Center) where he remained until August 1, Plaintiffs allege that Dr. Kirschen, a HIP employee, conspired with and aided and abetted" other defendants to achieve the involuntary retention of Lior. As a result of the alleged " abduction " and involuntary confinement, plaintiffs allege that Lior lost equity in four properties located in Houston, Texas i. e., Oak Limb; 1715 Johanna Drive; 8122 Oak Moss; and 8901 W. Bellfort Road- all of which were foreclosed. Plaintiff Tamar Avni claims that during her son s alleged involuntary retention she could not leave him at Pilgrim s mercy and travel for long periods of time to Houston, Tx. " As a result, she contends she lost her own

4 financial interest (a second lien in excess of $540, 000) in the aforementioned properties. The complaint, verified by non- party Dov Avni, and the sworn 1 t supplement to original complaint" read together and hereafter referred to as the complaint, is a rambling stream of consciousness litany of the same generalized grievances alleged in the prior action, bearing index no /04, dismissed by Justice Brennan. In this action, plaintiff Tamar Avni and her son, Lior, have made no attempt to identify or label particular causes of action or indicate the particular defendants against whom the various claims are alleged. CPLR As a consequence, the court and defendants are left to decipher, as best they can, the legal underpinnings of plaintiffs ' claims which, given a generous reading, include medical/psychiatric malpractice, false imprisonment, fraud, breach of contract and conspiracy. None of the claims, however, can be sustained. Initially, the court notes the absence of a physician- patient relationship between Tamar Avni and any of the defendants in this action so that she would have no claims against defendants based on malpractice, false imprisonment, fraud and/or conspiracy. Further, it is impossible to glean the relevant particulars of her purported breach of contract claim as plaintiffs have failed to plead the terms or provisions of the contract allegedly breached by HIP with respect to the treatment received by Lior. The record is devoid of any basis to sustain a claim for damages purportedly suffered by

5 Tamar Avni as a result of the foreclosure of the Texas properties. Such damages were not proximately caused by the actions of any of the defendants. To establish a cause of action to recover damages for false imprisonment, the plaintiff must show that: 1) the defendant intended to confine him, 2) the plaintiff was conscious of the confinement, 3) plaintiff did not consent to the confinement and 4) the confinement was not otherwise privileged. Ferretti v Town of Greenburqh, 191 AD2d 608, 610 d Dept. 1993), appeal dismissed 82 NY2d 748 (1993), leave to appeal denied 82 NY2d 662 (1993). A confinement pursuant to Mental Hygiene Law Article 9 is deemed privileged in the absence of medical malpractice. Porter v Westchester County Medical Center, 252 AD2d 518 d Dept. 1998), lv to appeal den. 92 NY2d 815 (1998). In order to prevail on a false imprisonment claim under the facts at bar, plaintiffs would have to prove medical malpractice. Here.not only is the false imprisonment claim barred by the one year statute of limitations (CPLR 215 (3) ), but also by the insufficiency of plaintiffs malpractice claim. As stated by Justice Brennan in his order of March 4, 2005 It is well settled that a psychiatrist may not be held liable for a mere error in professional judgment Fotinas v Westchester County Medical Center, 300 AD2d 437, 439 Dept. 2002), but may be liable if a treatment decision ' was something less than a professional medical determination. New York Ci t 6 Health & Hosps. 270, 282 Dept. 1982). Corp. Bell v 90 AD2d

6 The court is confronted with a situation in which the complaint alleges that multiple physicians, including Dr. Kirschen, who was employed by HIP, participated in a conspiracy which resulted in Lior s " abduction " from the HIP-NY Woodbury Mental Services facility on May 23, 2002 and involuntary confinement at Pilgrim Psychiatric Center i. e., allege in false imprisonment. Plaintiffs further 39 of the complaint, without one iota of substantiation, or any specific facts to back up the allegation, that Dr. Kirschen knowingly gave false testimony at a hearing held before the Hon. Melvin Tanenbaum on November 19, 2002, regarding, inter alia, his observation, diagnosis/treatment of Lior and fraudulently concealed or distorted and misrepresented posi ti ve facts, events, treatment, records and evaluation reports, etc. A fraud claim requires detailed and specific pleading. The elements of fraud that must be specifically pleaded are misrepresentation of a materia l fact, falsi ty, knowledge of intent to deceive, reliance and damages. These elements are totally lacking in plaintiffs ' complaint. Caniqlia v Chicaqo Tribune-New York News Syndicate, Inc., 204 AD2d 233, 234 (1st Dept. 1994). The record, however, does not support plaintiffs ' claims. The orders of the Hon. Marquette L. Floyd (August 20, 2002) and the Hon. Melvyn Tanenbaum dated November 19, 2002, establish that a hearing was held on the matter of Lior ' s retention on August 20, 2002 before Justice Floyd who authorized the retention of the patient for care and treatment for a period not to exceed

7 six months; and 2) a rehearing and review of the order of August 20, 2002 was conducted on November 19, 2002 by the Hon. MelVY Tanenbaum who issued the same direction as Justice Floyd with the addi tional provision that the care and treatment take place at the hospital or a residential setting supervised by the State. Further, in an order dated December 9, 2002, Justice Tanenbaum found that Dov Avni, Lior ' s father, was without standing to appear or move for relief in the proceeding of November 19, 2002 wherein the court denied Mr. Avni' s motion to intervene as a party in that proceeding. Mental Hygiene Law ~ (a) (2) provides that a person may be involuntarily committed to a hospital when, in the opinion of the proper authority, the person has " a mental illness for which immediate inpatient care and treatment is appropriate " and which is " likely to result in serious harm to himself and others. " A valid, binding and enforceable court order obtained and issued in accordance with Mental Hygiene Law precludes the relitigation of the issues determined therein in a later action to recover damages. Freemonde v City of New York, 1 AD3d 560 d Dept. 2003), app dism. 2 NY3d 794 (2004); Porter v Westchester County Medical Center supra Plaintiffs fail to demonstrate that the process by which the orders were granted, and in which Lior was represented by Mental Heal th Legal Services, was in any way tainted by fraud, concealment of records, conspiracy among physicians, medical

8 malpractice, breach of contract or any other irregularities with respect to Lior ' s confinement. Although an independent cause of action for civil conspiracy is not recognized in New York State, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme. Li tras v Litras 254 AD2d 395, 396 d Dept. 1998). Given the record at bar, plaintiffs ' claim of civil conspiracy is totally lacking in merit. The record establishes that the decision to involuntarily commi t Lior was made in accordance with accepted medical practice and the Mental Hygiene Law. As such, there is no actionable, underlying tort of medical/psychiatric malpractice on which to ground either the civil conspiracy or false imprisonment claims. This action, for money damages, based on the general theories previously advanced by Lior ' s father, remains untenable. The claims advanced by Lior himself and his mother must be dismissed as to all movants. In a hearing on the issue of Lior ' s competency, in which Lior was represented by an attorney, the court found that Lior was mentally ill, in need of inpatient care and treatment in a hospital or other state run facility. The allegations of the complaint, even read in the light most favorable to plaintiffs, and according them the benefit of every favorable inference Held v Kaufman, 91 NY2d 425 (1998), fly in the face of the factual underpinnings of the case. Where documentary evidence contradicts plaintiffs ' factual allegations

9 and disposes of their claims, dismissal is warranted. Berardino v Ochlan, 2 AD3d 556 d Dept. 2003). While on a motion to dismiss, facts pleaded are presumed to be true, allegations such as those here, consisting of bare legal conclusions, as well as factual claims inherently incredible or flatly contradicted by documentary evidence, are not enti tied to such consideration. I, Inc. v Goldman Sachs & Co. 5 NY3d 11, 27 (2005). EBC In its pre-answer dismissal motion, NHCC argues that the action is barred by the one year and ninety day statute of limitations under Public Authorities Law ~ 3415(1) (c). According to the complaint, the last date of Lior s treatment by NHCC employees was May 23, This action, however, was not filed until May 20, Even if the court were to credit plaintiffs assertion that the statute of limitations was tolled, due to Lior s mental disability, until November 22, 2002, when prior to Lior s execution of a power of attorney in favor of his father, Dov, Dr. Maria Santos- Dunphy of Pilgrim Psychiatric Center declared that Lior s mental disability disappeared ( ~ 48, sworn t Supplement to Original Complaint), plaintiffs failed to file a notice of claim on NHCC as mandated by Municipal Law ~ 50-e, a condition precedent to suit against NHCC or its employee, Jacob Ninan, M. D., who has cross moved to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (a) (8). General Municipal Law 50-e (1) (a) requires that in any case founded upon tort, where a notice of claim is required by law as a condition precedent to the commencement of an action or special

10 proceeding against a public corporation, as defined by law (see, General Construction Law ~ 66 (1) ), or any officer, appointee, or employee thereof, a notice must be given in compliance with the provisions of the statute, within 90 days after the claim arises. However, service of a notice of claim upon an officer, appointee or employee of a public corporation is not a condition precedent to the commencement of an action or special proceeding against such person, and if an action or special proceeding is commenced against such person, but not against the public corporation, service of the notice of claim upon the public corporation will be required only if the corporation has a statutory obligation to indemni fy such person. Mental Hygiene Law ~ states that a local government which has established a local government unit shall save harmless a board member, officer, or employee of the unit from any claim, demand, suit, judgment by reason of alleged negligence to any person arising out of actions performed in the discharge of his duties and wi thin the scope of his employment. Further, Mental Hygiene Law ~ states that an action under this section against a local government, board member, officer, or employee may not be maintained unless a notice of claim is made in compliance with the notice of claim provisions contained in General Municipal Law ~ 50-e. Inasmuch as Dr. Ninan was a NHCC employee, acting wi thin the scope of his duties with respect to allegations herein, plaintiffs were required to comply with 50-e of the General Municipal Law.

11 For the aforementioned reasons, all claims against NHCC and all its employees, including Dr. Jacob Ninan, must be dismissed. CPLR 3211 (a) (5) and (a) (7). Moreover, the court notes that plaintiffs have failed to include an affidavit of service attesting to service of process on Dr. Ninan and have failed to dispute the claimed lack of jurisdiction. CPLR 3211 (a) (8). Accordingly, the respective motions by NHCC, HIP, Howard Kirschen, M. D. and the cross motion by Jacob Ninan, M. D. to dismiss plaintiffs ' complaint is granted. Plaintiffs ' three cross motions seeking entry of default judgment against various defendants and dismissal of their implied defenses are denied. Given the multiple deficiencies delineated herein-where, inter alia, proof is absent, insufficient, or untrustworthy; where proper procedure has not been followed, or service not made, or notice not timely given, where valid causes of action have not been stated, or jurisdiction not obtained, plaintiffs are not entitled to the requested relief. Rivera v Laporte, 120 Misc2d 733, 735 (N. 1983). Moreover, plaintiffs have presented no grounds to support their request for a default judgment against defendants or to dismiss any implied defenses. " The service of a notice of motion under CPLR 3211 (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order. CPLR 3211(f). E'\ E:RED Dated: 8I,. SEP i,' " r,1 tuoz,i w!",;..,, s