Dunn v. Khan, 2008 NY Slip Op 30432(U) (N.Y. Sup. Ct. 2/8/2008)
| Decision Date | 08 February 2008 |
| Docket Number | 007.,Motion Sequence: 006.,6494-05. |
| Citation | 2008 NY Slip Op 30432 |
| Parties | MITCHELL DUNN, as Administrator of the Estate of PAULINE DUNN, Deceased, Plaintiff(s), v. AIJAZ KHAN, M.D., CESAR DUMAYAS FLORITA, M.D., ETHEL CWIBEKER, PSY.D., AND SOUTH NASSAU COMMUNITIES HOSPITAL, Defendant(s). |
| Court | New York Supreme Court |
Motion (sequence #6) by defendant, Ethel Cwibeker, Psy., pursuant to CPLR § 8303-a, for an Order awarding her costs, sanctions and attorneys ' fees; and
Cross motion (sequence #7) by plaintiff, Mitchell Dunn, as Administrator of the Estate of Pauline Dunn, pursuant to 22 NYCRR 130-1.1 for an Order awarding him attorneys costs and sanctions for the making of the within motion; are determined as follows:
This case arises out of the death of Pauline Dunn on August 25, 2003. Plaintiff Administrator, Mitchell Dunn ("Dunn ), husband of Pauline, brings this action for medical and psychiatric malpractice against inter alia Ethel Cwibeker ("Dr. Cwibeker), a psychologist.
By an Order dated September 28 2007, this Court awarded the movant, Dr. Cwibeker summary judgment and dismissed the plaintiff's complaint as asserted against her. More specifically, this Court found that the defendant, Dr. Cwibeker, had submitted ample proof which established that no doctor-patient relationship had ever been formed between her and Pauline Dunn. Plaintiff failed to present any opposing papers or raise a material triable issue of fact as to whether Pauline Dunn was in fact a patient of the defendant, or whether defendant had ever treated, advised or agreed to undertake Pauline s care. Accordingly, this Court granted the defendant' s motion and plaintiff's complaint was dismissed against Dr. Cwibeker.
In bringing this motion for costs, sanctions and attorneys' fees "former" defendant Ethel Cwibeker, maintains that despite her previous assertions and the fact that at the outset she provided the plaintiff's attorney with documentary evidence, including letters, denying any relationship with the plaintiff's decedent, plaintiff's attorney nevertheless commenced and continued the underlying action. Defendant submits that plaintiff's commencement and subsequent refusal to withdraw his complaint constitutes bad faith and renders the underlying action "frivolous" under CPLR § 8303-a and 22 NYCRR 130-1.1. Defendant claims that the action was based upon material factual statements that were known to be false by the plaintiff and there was no reasonable basis in la or fact to commence or continue the action against her. Defendant submits that her defense of the frivolous actions entitles her to an award of costs, sanctions and attorneys' fees.
Plaintiff opposes the defendant' s motion and cross moves, pursuant to 22 NYCRR 130-1.1 for an Order awarding him attorneys' fees, costs and sanctions against the defendant Ethel Cwibeker and/or her attorney, for making the instant frivolous motion. Plaintiff maintains that defendant's motion for attorneys fees and sanctions is made in bad faith without any reasonable basis and law of fact (22 NYCRR 130-1.1).
It is noted at the outset that a judgment has not yet been entered in this case against the defendant, Ethel Cwibeker, Psy. D., thus, defendant' s motion, pursuant to CPLR 8303-a for costs and fees is timely made (Rose Valley Joint Venture v. Apollo Plaza Associates, 191 A.D.2d 874, 595 N.Y.S.2d 122 [3d Dept., 1993]).
Furthermore, it is noted that while defendant's unopposed motion for summary judgment dismissal of plaintiff's complaint was granted (Sequence #4), that judgment, in and of itself, does not necessarily automatically entitle her to sanctions herein (cf. Kpach v. Olympia & York, 215 A.D.2d 304, 627 N.Y.S.2d 12 [1st Dept., 1995]). The part seeking sanctions under CPLR § 8303-a must be held to the burden of demonstrating entitlement to relief (see Schulz v. Washington County, 157 A. 2d 948, 949, 550 N.Y.S.2d 446 (3d Dept. 1990]).
Pursuant to CPLR § 8303-a:
(a) If in an action to recover damages for personal injury, injury to property or wrongful death. . . such action or claim is commenced or continued by a plaintiff. . . and found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful part costs and reasonable attorney's fees not exceeding ten thousand dollars.
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(c) In order to find the action, claim, counterclaim, defense or cross claim to be frivolous under subdivision (a) of this section, the court must find one or more of the following:
(i) the action. . . was commenced, used or continued in bad faith, solely to delay or prolong the resolution of the litigation or to harass or maliciously injure another;
(ii) the action. . . was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law. If the action. . .was promptly discontinued when the "part or the attorney learned or should have learned that the action. . . lacked such a reasonable basis may find that the part or the attorney did not act in bad faith.
Thus CPLR § 8303-a requires "a showing that the plaintiff and counsel knew or should have known that the action lacked merit" (McGill v. Parker 179 A. 2d 98, 111, 582 N.Y.S.2d 91 [1st Dept., 1992]).
Similarly, 22 NYCRR 130-1.1, states, in pertinent part, as follows:
Section 130-1.1 Costs; sanctions.
(a) The court, in its discretion, may award to any part or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney s fees resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any part or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part shall be payable as provided in section 130-1.3 of this Subpart.
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(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
Statutes authorizing an award of costs and sanctions are in derogation of the common law and, therefore, must be strictly construed (Gottlieb v. Kenneth D. Laub Co., 82 N.Y.2d 457, 626 N.2d 29, 605 N.Y.S.2d 213 (1993); Ocasio v. City of Middletown, 148 A.D.2d 431 (2d Dept., 1989)). However, based upon the papers presented for this Court' consideration herein, this Court finds that plaintiff and plaintiff's counsel' s conduct herein was, in fact, frivolous a defined in CPLR 8303-a [c][ii] or 22 NYCRR 130- 1.1[c][1], [3] (see also Broich v. Nabisco, Inc. 2 A.D.3d 474, 768 N.Y.S.2d 489 [2d Dept., 2003]). The record confirms the following:
On February 18, 2005, plaintiff's counsel wrote a letter addressed to " Ethel Cwibeker M.D." requesting a copy of her office records regarding the treatment of Pauline Dunn. Attached to that letter was an authorization for release that specifically excluded psychotherapy notes." By letter dated February 28, 2005, Dr. Cwibeker responded to plaintiff's counsel' s letter advising that (i) she is not a medical doctor and (ii) she had met Pauline Dunn (Motion, Ex. B).
Subsequently, on or about March 7, 2005, plaintiff's counsel sent another letter to the defendant demanding a copy of her "psychotherapy and counseling notes" regarding the treatment" of Pauline Dunn (Motion, Ex. C). By letter dated April 8, 2005, defendant Dr. Cwibeker produced said records and again advised plaintiff's counsel that she had only met with Mrs. Dunn once after her release from the hospital, that she was never a patient of Dr. Cwiebeker, and there was no treatment (Id. Ex. D).
On or about April 26, 2005, plaintiff commenced the underlying action by service of the Summons and Complaint in which he alleged that the defendant rendered "medical and/or psychological care and services to the decedent, Pauline Dunn, from on or about October 2002 continuously up through and including August 25, 2003" (Id. Ex. E [Complaint], ¶ 32). In response, defendant served and filed a Verified Answer with Cross Claims, Counter Claims and Third Part Complaint demanding that plaintiff's Complaint be dismissed on the grounds that it lacks merit. Defendant/third-part plaintiff, Ethel Cwibeker, also claimed that she was entitled to attorney s fees (Id., Ex. F).
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