| Padilla v Verczky-Porter |
| 2009 NY Slip Op 07058 [66 AD3d 1481] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| Barbara Padilla, Respondent, v Kinga M. Verczky-Porter, M.D., etal., Appellants. |
—[*1] Rosenthal, Siegel & Muenkel, LLP, Buffalo (Ellen M. Krebs of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), enteredNovember 20, 2008 in a medical malpractice action. The order denied the motion of defendantsfor summary judgment and granted the cross motion of plaintiff for leave to amend thecomplaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion in part and dismissing the third cause of action and the claim for punitivedamages against defendant Kinga M. Verczky-Porter, M.D., and dismissing the complaintagainst defendants Millard Fillmore Hospital and Kaleida Health, doing business as MillardFillmore Hospital, and by denying the cross motion and as modified the order is affirmedwithout costs.
Memorandum: Plaintiff commenced this medical malpractice action seeking compensatoryand punitive damages for psychological injuries she sustained as the result of an alleged sexualrelationship with defendant Kinga M. Verczky-Porter, M.D. (Dr. Porter), a resident physicianwho rendered care to plaintiff at an outpatient clinic on numerous occasions for over a year. Dr.Porter was employed by defendants Millard Fillmore Hospital and Kaleida Health, doingbusiness as Millard Fillmore Hospital (collectively, Kaleida defendants). Plaintiff alleged that,after her last visit to Dr. Porter on May 25, 2001, she was contacted by Dr. Porter at home andDr. Porter initiated a sexual relationship with her that continued until late June 2001, when Dr.Porter moved out of state. Plaintiff further alleged that they continued to communicate bytelephone and e-mail for several months, and that the relationship ended in December 2001. Inthis action, commenced by plaintiff on November 25, 2003, plaintiff asserted two causes ofaction against all defendants for medical malpractice and breach of fiduciary duty. In addition,she asserted a cause of action against Dr. Porter for intentional or reckless infliction of emotionaldistress, and a cause of action against the Kaleida defendants for negligent hiring andsupervision. Supreme Court thereafter denied defendants' motion for summary judgmentdismissing the complaint, and granted plaintiff's cross motion for leave to amend the complaintto add a cause of action for negligent infliction of emotional distress against Dr. Porter "[if] thecourt finds that [the c]omplaint alleges an intentional tort alone."[*2]
Addressing first those parts of the complaint concerningDr. Porter, we reject the contention of defendants that the court erred in denying that part of theirmotion with respect to the medical malpractice cause of action against her (see generally Doev Eppel, 280 AD2d 911 [2001]; Marpe v Dolmetsch, 246 AD2d 723 [1998]).Although in support of the motion defendants submitted the affidavit of a physician who assertedthat Dr. Porter's treatment of the various ailments of plaintiff was proper, the physician did notaddress the allegations of negligence stemming from the alleged sexual relationship between Dr.Porter and plaintiff, as set forth in plaintiff's bill of particulars (see S'Doia v Dhabhar,261 AD2d 968 [1999]). Defendants also failed to meet their initial burden of establishing thatany alleged negligence stemming from that relationship was not a proximate cause of plaintiff'sinjuries (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
We agree with defendants, however, that the court erred in denying that part of their motionwith respect to the intentional or reckless infliction of emotional distress cause of action againstDr. Porter and in granting plaintiff's cross motion, and we therefore modify the orderaccordingly. The intentional or reckless infliction of emotional distress cause of action istime-barred and thus that part of the motion seeking summary judgment dismissing it shouldhave been granted (see Dana v Oak Park Marina, 230 AD2d 204, 209-210 [1997];Goldner v Sullivan, Gough, Skipworth, Summers & Smith, 105 AD2d 1149, 1151 [1984]).With respect to the cross motion, we note the well-settled principle that leave to amend apleading should not be granted where the proposed cause of action is "totally devoid of merit"(Probst v Cacoulidis, 295 AD2d 331, 332 [2002]; see Hogarth v City of Syracuse[appeal No. 1], 238 AD2d 887 [1997], lv dismissed 90 NY2d 935 [1997], lvdenied 93 NY2d 812 [1999]; Boccio v Aspin Trucking Corp., 93 AD2d 983 [1983])."Although physical injury is no longer a necessary element of [the proposed] cause of action fornegligent infliction of emotional distress, such a cause of action generally must be premised onconduct that unreasonably endangers the plaintiff's physical safety or causes the plaintiff to fearfor his or her physical safety" (Johnson v New York City Bd. of Educ., 270 AD2d 310,312 [2000]; see Andrewski v Devine, 280 AD2d 992, 993 [2001]; Ben-Zvi v KronishLieb Weiner & Hellman, 278 AD2d 167 [2000]). Here, the proposed cause of action fails toallege that Dr. Porter's conduct unreasonably endangered plaintiff's physical safety or causedplaintiff to fear for her physical safety (see Kenneth S. v Berkshire Farm Ctr. & Servs. for Youth, 36 AD3d1092, 1094 [2007]; Andrewski, 280 AD2d at 993; Ben-Zvi, 278 AD2d 167[2000]).
With respect to those parts of the complaint concerning the Kaleida defendants, we concludethat they are entitled to summary judgment dismissing the complaint against them, and wetherefore further modify the order accordingly. We note that the allegations in the medicalmalpractice cause of action against them and the negligent hiring and supervision cause of actionare based on their allegedly negligent supervision of Dr. Porter. The Kaleida defendants mettheir initial burden with respect to those causes of action by establishing that they "acted withreasonable care in . . . supervising the employee, and plaintiff has failed to tenderany admissible evidence to the contrary" (Judith M. v Sisters of Charity Hosp., 93 NY2d932, 933-934 [1999]). There is no evidence in the record before us that the Kaleida defendantswere aware of Dr. Porter's alleged sexual relationship with plaintiff, or that Dr. Porter's actionswere reasonably foreseeable (see Garcia v Montefiore Med. Ctr., 293 AD2d 264 [2002]).The affidavit of plaintiff's expert submitted in opposition to the motion is based solely onspeculation and thus is insufficient to defeat those parts of the motion with respect to the medicalmalpractice cause of action against the Kaleida defendants as well as the negligent hiring andsupervision cause of action (see Judith M., 93 NY2d at 934; Travis v United Health Servs. Hosps.,Inc., 23 AD3d 884, 885 [2005]). The breach of fiduciary duty cause of action againstthe Kaleida defendants is duplicative of the two aforementioned causes of action and thus thesame reasoning applies to that cause of action as well, requiring its dismissal (see generally Adamski v Lama, 56AD3d 1071, 1072-1073 [2008]; Guiles v Simser, 35 AD3d 1054, 1054-1055 [2006]).
Finally, we agree with defendants that the court erred in denying that part of their motion forsummary judgment dismissing the sole remaining claim for punitive damages, which is based[*3]on the cause of action for breach of fiduciary duty against Dr.Porter, and we therefore further modify the order accordingly. The conduct of Dr. Porter did notmeet the "very high threshold of moral culpability" to support a claim for punitive damages withrespect to her alleged breach of her fiduciary duty to plaintiff (Giblin v Murphy, 73NY2d 769, 772 [1988]; see generally Jakobsen v Wilfred Labs., 99 AD2d 525, 527[1984]). Present—Hurlbutt, J.P., Martoche, Centra, Green and Gorski, JJ.