Burton v. Sciano

• Decision Date: 04 October 2013
• Parties: Bonnie L. BURTON, Plaintiff–Appellant, v. Michael T. SCIANO, M.D., et al., Defendants, and Rite Aid of N.Y., Inc., Doing Business as Rite Aid Pharmacy, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 1435
972 N.Y.S.2d 755
2013 N.Y. Slip Op. 06447

Bonnie L. BURTON, Plaintiff–Appellant,
v.
Michael T. SCIANO, M.D., et al., Defendants,
and
Rite Aid of N.Y., Inc., Doing Business as Rite Aid Pharmacy, Defendant–Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

Oct. 4, 2013.

[972 N.Y.S.2d 756]

Cote & Van Dyke, LLP, Syracuse (Joseph S. Cote, III, of Counsel), for Plaintiff–Appellant.

Barth Sullivan Behr, Buffalo (Laurence D. Behr of Counsel), for Defendant–Respondent.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries allegedly arising from the medical treatment that she received for breathing difficulties. Insofar as relevant here, plaintiff sought damages from defendant Rite Aid of N.Y., Inc., doing business as Rite Aid Pharmacy (Rite Aid), for its alleged negligence in filling a prescription that was written by another defendant. Plaintiff appeals from an order that granted Rite Aid's motion pursuant to

[972 N.Y.S.2d 757]

CPLR 3211(a)(7) to dismiss the complaint and all cross claims against it.

Contrary to plaintiff's contention, Supreme Court properly granted Rite Aid's motion to dismiss the complaint for failure to state a cause of action. It is well settled that, “[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction ... We accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ... In assessing a motion under CPLR 3211(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint ... and ‘the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one’ ” ( Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511;see Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414, 729 N.Y.S.2d 425, 754 N.E.2d 184).

With respect to the sufficiency of the complaint before us, we note that in New York “ ‘[t]he standard of care which is imposed on a pharmacist is generally described as ordinary care in the conduct of his [or her] business. The rule of ordinary care as applied to the business of a druggist means the highest practicable degree of prudence, thoughtfulness and vigilance commensurate with the dangers...