Herman v. Kveton-Cattani

• Decision Date: 31 December 2014
• Docket Number: 2013-10113
• Citation: 999 N.Y.S.2d 528,2014 N.Y. Slip Op. 09107,123 A.D.3d 1093
• Parties: Chaim HERMAN, respondent, v. Patricia KVETON–CATTANI, appellant.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 1093

999 N.Y.S.2d 528

2014 N.Y. Slip Op. 09107

Chaim HERMAN, respondent

v.Patricia KVETON–CATTANI, appellant.

2013-10113

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

Dec. 31, 2014.

Costello, Shea & Gaffney, LLP, New York, N.Y. (Frederick N. Gaffney and Michael J. Morris of counsel), for appellant.

The Silverman Law Firm, PLLC, New City, N.Y. (Rhona A. Silverman of counsel), for respondent.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN and JOSEPH J. MALTESE, JJ.

Opinion

In an action to recover damages for medical malpractice, the defendant appeals from so much of an order of the Supreme Court, Rockland County (Walsh II, J.), dated August 20, 2013, as denied those branches of her motion which were pursuant to CPLR 3211(a) to dismiss the first, second, third, seventh, and eighth causes of action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendant's motion which were pursuant to CPLR 3211(a) to dismiss the first, second, third, seventh, and eighth causes of action are granted.

The plaintiff commenced this action to recover damages for medical malpractice against, among others, cosmetic surgeon Robert Cattani and his wife, the defendant, Patricia Kveton–Cattani. The original complaint asserted only one cause of action against Kveton–Cattani, which alleged that she and Cattani fraudulently concealed assets. In an order entered March 20, 2013, the cause of action asserted against Kveton–Cattani was severed by the Supreme Court. The plaintiff subsequently amended the complaint in this action to add additional causes of action against Kveton–Cattani. Insofar as relevant to this appeal, the first through third and seventh causes of action of the amended complaint sounded in medical malpractice, and alleged that Kveton–Cattani held herself out as a medical assistant and partner in her husband's practice, and failed to use reasonable care in her treatment of the plaintiff in connection with a cosmetic surgical procedure. In an affidavit, the plaintiff stated that Kveton–Cattani was present at Cattani's office, assisted at the office, sat at the front desk, and “basically ran the office.” The plaintiff also stated that Kveton–Cattani was “present in the operating room” during the subject procedure. The eighth cause of action sounded in negligent infliction of emotional distress, alleging that Kveton–Cattani failed to permit the plaintiff access to “rescue EMTs.” Specifically, as explained by the plaintiff in his affidavit, after the completion of the surgical procedure, Kveton–Cattani and Cattani “lock[ed] the door of the operating room and clos [ed] the lights in an effort to prevent” the plaintiff from obtaining access to emergency medical technicians.

Kveton–Cattani moved to dismiss the complaint, and the Supreme Court denied those branches of her motion which were to dismiss the first, second, third, seventh, and eighth causes of action. We reverse.

“In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the sole criterion is whether from the complaint's ‘four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law’ ” (Davis v. South Nassau Communities Hosp., 119 A.D.3d 512, 514, 989 N.Y.S.2d 500, lv. granted 24 N.Y.3d 905, 2014 WL 4693253, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [some internal quotation marks omitted]; see Sokol v. Leader, 74 A.D.3d 1180, 1180–1181, 904 N.Y.S.2d 153 ). The court must afford the complaint a liberal construction, “ accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; see Davis v. South Nassau Communities Hosp., 119 A.D.3d at 514, 989 N.Y.S.2d 500, WOSS, LLC v. 218 Eckford, LLC, 102 A.D.3d 860, 860, 959 N.Y.S.2d 218 ; Sokol v. Leader, 74 A.D.3d at 1180–1181, 904...