| Baker v Inamdar |
| 2012 NY Slip Op 06770 [99 AD3d 742] |
| October 10, 2012 |
| Appellate Division, Second Department |
| Erik Baker, Appellant, v Subhash Inamdar,Respondent. |
—[*1] Gordon & Silber, P.C., New York, N.Y. (Eldar Mayouhas and Andrew B. Kaufman ofcounsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals froma judgment of the Supreme Court, Westchester County (O. Bellantoni, J.), entered October 28,2010, which, upon an order of the same court entered September 7, 2010, granting that branch ofthe defendant's motion which was pursuant to CPLR 3211 (a) to dismiss the complaint, is infavor of the defendant and against him dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff employed the defendant psychiatrist to treat his child pursuant to a directive ofthe court in a matrimonial action in which the plaintiff's application for custody of the child wasthen pending. The defendant prepared a report and submitted it to the court in that action, and theplaintiff stipulated to its admission into evidence. Subsequently, the court denied the plaintiff'sapplication for custody (see Baker vBaker, 66 AD3d 722 [2009]).
The plaintiff then commenced this action to recover damages for medical malpractice,negligence, and defamation based upon certain statements in the report concerning the plaintiff.The defendant moved, inter alia, pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint.The Supreme Court granted that branch of the motion which was to dismiss the first and secondcauses of action pursuant to CPLR 3211 (a) (7) and that branch of the motion which was todismiss the third cause of action, in effect, pursuant to CPLR 3211 (a) (1). On October 28, 2010,the Supreme Court entered a judgment dismissing the complaint. We affirm.
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must afford the pleading a liberal construction, accept all facts asalleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory" (Rietschel v Maimonides Med. Ctr., 83AD3d 810, 810 [2011] [internal quotation marks omitted]; see Leon v Martinez, 84NY2d 83, 87 [1994]). On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (1),"dismissal is warranted only if the documentary evidence submitted conclusively establishes adefense to the [*2]asserted claims as a matter of law" (Leon vMartinez, 84 NY2d at 88; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314,326 [2002]).
Here, the Supreme Court properly dismissed the first cause of action pursuant to CPLR 3211(a) (7). Accepting the facts as alleged in the complaint as true and according the plaintiff thebenefit of every possible favorable inference (see Nonnon v City of New York, 9 NY3d 825, 827 [2007]), theplaintiff failed to state a cause of action to recover damages for medical malpractice. Accordingto the allegations in the complaint, the physician-patient relationship here was between thedefendant and the plaintiff's child, not the plaintiff and, thus, the allegations do not support a dutyof care owed by the defendant to the plaintiff (see Cohen v Cabrini Med. Ctr., 94 NY2d639, 642 [2000]; Fox v Marshall, 88AD3d 131 [2011]).
Further, the third cause of action, which sought to recover damages for defamation, wasproperly dismissed pursuant to CPLR 3211 (a) (1). An essential element of a defamation claim isthat the alleged defamatory statement was " 'published without privilege or authorization' " (Epifani v Johnson, 65 AD3d 224,233 [2009], quoting Salvatore vKumar, 45 AD3d 560, 563 [2007]). The documentary evidence submitted by thedefendant in support of his motion established conclusively that the plaintiff consented to theadmission of the subject report into evidence by way of stipulation. Accordingly, the defendantwas entitled to dismissal of the third cause of action pursuant to CPLR 3211 (a) (1) (see Pacella v Whiteman Osterman &Hanna, 14 AD3d 545 [2005]; cf. Sokol v Leader, 74 AD3d 1180, 1181-1182 [2010]).
Finally, the Supreme Court properly dismissed the second cause of action as duplicative ofthe first and third causes of action (seeTurner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850 [2009]; Kvetnaya v Tylo, 49 AD3d 608,609 [2008]). Rivera, J.P., Angiolillo, Belen and Roman, JJ., concur.