| Juric v Bergstraesser |
| 2007 NY Slip Op 07955 [44 AD3d 1186] |
| October 25, 2007 |
| Appellate Division, Third Department |
| Damir Juric, Appellant, v Lynn Bergstraesser et al.,Respondents. |
—[*1] Sholes & Miller, L.L.P., Poughkeepsie (Denise M. Fitzpatrick of counsel), for LynnBergstraesser, respondent. O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains (Montgomery L. Effinger ofcounsel), for Benedictine Hospital, respondent.
Mercure, J. Appeal from an order of the Supreme Court (Bradley, J.), entered June 1, 2006 inUlster County, which granted defendants' motions to dismiss the complaint.
In December 2004, plaintiff reported to the emergency room of defendant BenedictineHospital complaining of chest pains. Plaintiff's former family physician, defendant LynnBergstraesser, was on call that night and plaintiff remained a patient of her "group," UlsterFamily Medicine. Defendant alleged in his complaint, however, that Bergstraesser herself was nolonger his physician due to her "bec[oming] involved in his marital" problems and that he toldthe hospital's staff—including the emergency room physician who treated him, HarneetSethi—that he "did not want [Bergstraesser] to treat him due to personal reasons and didnot want her to admit him into the hospital." Nevertheless, plaintiff claims, Sethi showedBergstraesser his medical records at the emergency room, leading Bergstraesser to alert plaintiff'swife that she and her child might be in danger. Plaintiff asserts that the information relayed byBergstraesser "provid[ed] his wife and her counsel with a basis to take adverse actions againstplaintiff" in his "marital dispute," resulting in plaintiff being forced to undergo a psychiatricexamination and "causing [him] significant emotional damage arising from his being deniedvisitation for months [*2]with his young daughter."
Plaintiff thereafter commenced this action against Bergstraesser and the hospital alleging aviolation of his "common law right to privacy." Supreme Court subsequently granted defendants'separate motions to dismiss the complaint for failure to state a cause of action. Plaintiff appealsand we now modify by reversing so much of the order as granted Bergstraesser's motion todismiss.
"[O]n a motion to dismiss for failure to state a claim, the court 'must afford the complaint aliberal construction, accept as true the allegations contained therein, accord the plaintiff thebenefit of every favorable inference and determine only whether the facts alleged fit within anycognizable legal theory' " (Skibinsky vState Farm Fire & Cas. Co., 6 AD3d 975, 976 [2004], quoting 1455 WashingtonAve. Assoc. v Rose & Kiernan, 260 AD2d 770, 771 [1999]). In addition, "a court may freelyconsider affidavits submitted by the plaintiff to remedy any defects in the complaint" because thefundamental " 'criterion is whether the proponent of the pleading has a cause of action, notwhether he [or she] has stated one' " (Leon v Martinez, 84 NY2d 83, 88 [1994], quotingGuggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).
Here, as Supreme Court correctly noted, "New York does not recognize a common-law rightof privacy" (Messenger v Gruner + Jahr Print. & Publ., 94 NY2d 436, 441 [2000],cert denied 531 US 818 [2000]; see Howell v New York Post Co., 81 NY2d 115,123 [1993]) and, thus, plaintiff cannot maintain a cause of action on the theory set forth in thecomplaint. Moreover, plaintiff concedes that the limited statutory right to privacy contained inCivil Rights Law §§ 50 and 51, which relates to the unauthorized commercial use ofa person's name, portrait or picture (see Messenger v Gruner + Jahr Print. & Publ., 94NY2d at 441) is inapplicable here. While plaintiff argues that he may nevertheless maintain acause of action against the hospital for failure to implement rules governing access to records, heprovides no authority for the proposition that damages may be recovered based upon Sethi'sdecision to consult with Bergstraesser, who was on-call at the hospital that night. Thus, thecomplaint was properly dismissed against the hospital.
We note, however, that the complaint can also be liberally interpreted as alleging a breach byBergstraesser of the implied covenant of trust and confidence that is inherent in thepatient-physician relationship (see Doe v Community Health Plan—Kaiser Corp.,268 AD2d 183, 186-187 [2000]). In that regard, the relevant portion of plaintiff's medicalrecords—quoted in the complaint and indicating that plaintiff was experiencing a "majorpsych pathology," had checked out of the hospital against medical advice, was carrying a large"stack of gun magazines," had recently been left by his wife and had a history of verbally abusingand intimidating his wife—may very well provide justification for Bergstraesser's attemptto alert plaintiff's wife of the potential danger to her safety (see Oringer v Rotkin, 162AD2d 113, 114 [1990]; see generally People v Bierenbaum, 301 AD2d 119, 141-142[2002], lv denied 99 NY2d 626 [2003], cert denied 540 US 821 [2003];MacDonald v Clinger, 84 AD2d 482, 487-488 [1982]; Tarasoff v Regents of Univ. ofCal., 17 Cal 3d 425, 440-442, 551 P2d 334, 346-348 [1976]). Nevertheless, "[j]ustificationor excuse will depend upon a showing of circumstances and competing interests which supportthe need to disclose. Because such a showing is a matter of affirmative defense, [Bergstraesser] isnot entitled to dismissal of the action" (MacDonald v Clinger, 84 AD2d at 488 [citationomitted]).[*3]
Plaintiff's arguments, to the extent not addressed herein,have been considered and found to be lacking in merit.
Cardona, P.J., Peters, Spain and Carpinello, JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as granted defendant LynnBergstraesser's motion to dismiss the complaint; said motion denied; and, as so modified,affirmed.