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Elements of Intentional Infliction of Emotional Distress and Prima Facie Tort Described

In finding the counterclaims for intentional infliction of emotional distress and prima facie tort were properly dismissed, the Third Department described the elements of those causes of action:

…[W]ith respect to the counterclaim for intentional infliction of emotional distress [,] … [defendant] was required to plead “extreme and outrageous conduct, the intentional or reckless nature of such conduct, a causal relationship between the conduct and the resulting injury, and severe emotional distress” … . Notably, the alleged conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . and [be] utterly intolerable in a civilized community” … . Here, [defendant] alleged that, during the course of their professional relationship, plaintiff sent unwanted gifts and letters, engaged in suggestive conversations and made threats of future conduct toward him. Even reading the allegations liberally and accepting them as true, we find that the alleged conduct, while undeniably inappropriate, did not rise to the level of being “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency” … . …

As for [defendant’s] counterclaim for prima facie tort, there can be no recovery under this theory “unless malevolence is the sole motive for [plaintiff’s] otherwise lawful act or, in [other words], unless [plaintiff] acts from disinterested malevolence” … . Stated another way, the act “must be a malicious one unmixed with any other and exclusively directed to injury and damage of another” … . Hyman v Schwartz, 2015 NY Slip Op 02819, 3rd Dept 4-2-15

 

Graphic Designer Properly Found to Be an Employee

The Third Department affirmed the Unemployment Insurance Appeal Board’s conclusion that a graphic designer was an employee, not an independent contractor:

…[I]t is well settled that the existence of an employment relationship is a factual issue for the Board to resolve and its determination will not be disturbed if supported by substantial evidence … . “The determination rests not on one single factor, but consideration is given to whether control was exercised over the results or the means used to achieve those results, with the latter factor deemed more important” … .

Here, claimant responded to a website posting and, after being interviewed, was selected by Propoint to work on client projects at a mutually agreed pay rate of $28 per hour. He was paid every two weeks regardless of whether Propoint received payment from the client. Although there were no set working hours, claimant performed most of his work at the employer’s premises, where he was provided with a computer, software and related items, and he was required to turn in daily time cards. Propoint did not provide claimant with any leave time or other benefits, withhold taxes from his paychecks or prohibit him from working for others, and it required him to sign an independent contractor agreement. Propoint, however, retained the right to review claimant’s work product and direct him to make changes. Moreover, the confidentiality provisions of the independent contractor agreement precluded claimant from including client projects in his personal portfolio. Inasmuch as the foregoing demonstrates that Propoint retained control over both the means and the results of claimant’s work, substantial evidence supports the Board’s finding of an employment relationship… . Matter of Ramirez (Propoint Graphics LLC–Commissioner of Labor), 2015 NY Slip Op 02825, 3rd Dept 4-2-15

 

Failure to Comply With Terms of Suspended Judgment Justified Termination of Parental Rights

The Third Department determined mother’s failure to comply with the terms of a suspended judgment (permanent neglect) justified termination of her parental rights.  There was evidence the child was thriving in foster care:

It is well settled that a suspended judgment gives a parent who is found to have permanently neglected his or her child “a brief grace period within which to become a fit parent with whom the child can be safely reunited” … . Where the parent’s failure to comply with the terms and conditions of a suspended judgment is established by a preponderance of the evidence, such judgment may be revoked and parental rights may be terminated … . * * *

…”[W]hile respondent’s ‘failure to comply with the terms and conditions of the suspended judgment does not compel the termination of her parental rights, [it] is strong evidence that termination is, in fact, in the best interests of the [child]'”… . Matter of Cody D. (Brittiany F.), 2015 NY Slip Op 02811, 3rd Dept 4-2-15

 

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Father, Who Had Not Been Informed of the Birth of His Child Until After the Child Was Adopted, Was Properly Awarded Custody of the Child

The Third Department affirmed Family Court’s rulings that: the father’s consent to the adoption of his child was required; the father had preserved his right to contest the adoption of his child; and custody of the child is awarded to the father.  Mother put the child up for adoption and the child was adopted before mother informed father she had given birth to his child.  The Third Department heard the appeal despite problems with the notice of appeal and the absence of the Family Court hearing transcript. No one contested the factual findings made by Family Court:

“The father of a child born out-of-wedlock is entitled to full protection of his relationship with the child, including the right to deny consent to an adoption at birth by strangers, only if he ‘assert[s] his interest promptly . . . [and] manifest[s] his ability and willingness to assume custody of the child'” … . Evaluation of the father’s conduct includes, among other things, factors such as “his public acknowledgment of paternity, payment of pregnancy and birth expenses, steps taken to establish legal responsibility for the child, and other factors evincing a commitment to the child” … . Family Court’s many factual findings included that: the father had paid up to 90% of the household expenses when the mother resided with him; the mother was not visibly pregnant while living with him; the mother did not know she was pregnant until she had moved to New York City; FIA [the adoption agency] made no reasonable effort to notify the father; the father was first notified about the pregnancy and child on May 6, 2014; he was unable to contribute to pregnancy expenses through no fault of his own because he had no knowledge thereof; the mother was urged by FIA to decline to identify the father of her child; and, once the father became aware of the child, he filed a paternity petition within about 10 weeks and then a custody petition and he did so despite difficult logistics regarding filing (he lived in South Carolina, the child had been born in New York City, the adoption was pending in Albany County), as well as a lack of legal representation by counsel. The father submitted an affidavit stating that, after learning of some uncovered costs of the birth, he was making arrangements to pay those costs. He had a job and residence, and was able to take immediate custody of the child. In light of the uncontested facts found by Family Court, as well as the other relevant proof in the record, we are unpersuaded that Family Court erred in determining that the father adequately preserved his right to contest the adoption of his child … . Matter of Isabella TT. (Dalton C.), 2015 NY Slip Op 02838, 3rd Dept 4-2-15

 

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Summary Judgment Properly Granted to Hospital—Criteria for Hospital Liability for Treatment by a Non-Employee Explained

The Third Department determined summary judgment was properly granted to the hospital (AOMC) because plaintiff (Hoad) was treated by her private physician (Dolkart) and there was no indication hospital staff was negligent in following the doctor’s orders:

…[G]enerally, a hospital is not liable for the negligence of independent physicians except on a theory of ostensible or apparent agency … . Put differently, a hospital may be liable “where the hospital’s words or conduct communicated to a third-party patient give rise to the appearance and belief that the agent-independent physician possesses authority to act on behalf of the hospital” … . As the proponent of summary judgment, AOMC “bore the initial burden of establishing that [Hoad] sought care from a specific physician rather than from [AOMC] generally” … . Here, AOMC’s Vice President of Medical Affairs submitted an affidavit wherein he explained that Dolkart was not an employee, but a tenant with admitting privileges at AOMC. The record confirms that when Hoad was transferred from the emergency room, she consented to a transfer into Dolkart’s care at AOMC, not to AOMC generally. In response, no facts or admissible evidence were presented to establish that Hoad reasonably believed that Dolkart was AOMC’s employee. We therefore discern no basis for imposing liability based upon a theory of ostensible agency … .

We further find no basis for the infant’s claims against AOMC based on the actions of its professional staff. Generally, a hospital is insulated from liability “when its professional staff follows the orders of private physicians selected by the patient” … . An exception to this general rule exists “where the hospital staff knows that the doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders” … . Here, AOMC met its burden through the submission of an affirmation by … an obstetrician. Hoad v Dolkart, 2015 NY Slip Op 02831, 3rd Dept 4-2-15

 

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Defense Counsel Took a Position Adverse to the Defendant’s—Sentence Vacated

The Third Department determined the defendant’s sentence must be vacated because defense counsel took a position adverse to the defendant re: the defendant’s motion to withdraw his plea:

“It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea”… . While defense counsel need not support a pro se motion to withdraw a plea, counsel may not become a witness against his or her client …, make remarks that “affirmatively undermine” a defendant’s arguments …, or otherwise “take a position that is adverse to the defendant” … . Here, when asked to respond to defendant’s pro se motion, counsel advised that, in his opinion, “[County] Court thoroughly explained everything to him . . ., [defendant had] no questions concerning the plea” and that there was no way that he could see that defendant “pleaded without knowing what he was pleading to.” In our view, because counsel’s opinion was adverse to defendant, a conflict of interest arose and County Court should have assigned a new attorney to represent defendant … . People v Prater,2015 NY Slip Op 02806, 3rd Dept 4-2-15

 

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Mother Was Not Afforded a Full Hearing in a Custody-Modification Proceeding

The Third Department determined Family Court erred by not affording mother the opportunity to fully cross-examine father or present her own proof in a custody-modification proceeding:

It is well settled “that modification of a Family Ct Act article 6 custody order requires a full and comprehensive hearing at which a parent is to be afforded a full and fair opportunity to be heard” … . Family Court plainly deprived the mother of such a hearing by preventing her from fully cross-examining the father or submitting her own proof before imposing a custody arrangement to which she had not consented … . Matter of Richardson v Massey, 2015 NY Slip Op 02817, 3rd Dept 4-2-15

 

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A Stipulation Cannot Bind an Insurer to Nonexistent Coverage

In finding that a hearing was required to determine if respondent was entitled to supplemental uninsured/underinsured motorist (SUM) coverage, the Third Department noted that a stipulation, which implied the existence of such coverage, could not bind the insurer:

Supreme Court erred in concluding that the parties’ stipulation waived the issue of respondent’s entitlement to SUM coverage. Although the stipulation stated that, “[u]pon the completion of [certain] discovery set forth [in the stipulation, petitioner] agrees to proceed to arbitration,” a stipulation cannot create coverage of an individual, nor the obligation to arbitrate the issue of coverage, where the individual does not meet the relevant contractual prerequisites for coverage … . Stated differently, the stipulation cannot independently bind petitioner to supply coverage where no such coverage exists under the policy. Matter of Preferred Mut. Ins. Co. (Fisher), 2015 NY Slip Op 02837, 3rd Dept 4-2-15

 

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Plaintiff Properly Relied on the Doctrine of Res Ipsa Loquitur to Survive Summary Judgment

The Third Department determined plaintiff had raised a question of fact under the doctrine of res ipsa loquitur.  After shoulder surgery plaintiff experienced numbness and was unable to flex his index finger and thumb.  There was general agreement the injury was the result of specified nerve damage but either the anesthesia-procedure or the surgery could have caused it. The Third Department noted that plaintiff’s expert could not be deemed unqualified as to one of treating physicians simply because he was not a specialist in the same field as that treating physician:

“Ordinarily, a plaintiff asserting a medical malpractice claim must demonstrate that the doctor deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff’s injury” … . “Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitor a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant’s relation to it” … . “In a multiple defendant action in which a plaintiff relies on the theory of res ipsa loquitur, a plaintiff is not required to identify the negligent actor [and] [t]hat rule is particularly appropriate in a medical malpractice case . . . in which the plaintiff has been anesthetized” … . Elements of res ipsa loquitur are: “[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff” … . Frank v Smith, 2015 NY Slip Op 02827, 3rd Dept 4-2-15

 

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Contract Action Barred by Statute of Frauds Did Not Preclude Action Based Upon Quantum Meruit

The Third Department noted that a contract cause of action which is barred by the statute of frauds (re: the conveyance of real property) did not preclude an action based upon quantum meruit:

We agree with Supreme Court that plaintiff’s claim for breach of contract, based on an alleged oral agreement to convey real property, is barred by the statute of frauds (see General Obligations Law § 5-703 [1]…). The statute of frauds does not, however, preclude “quasi-contractual recovery for the reasonable value of services rendered” … . Accepting as true the allegations in plaintiff’s complaint, they adequately set forth a cognizable claim for quantum meruit based on the alleged performance of services by plaintiff and her expectation of payment from defendant … . Inasmuch as the quantum meruit cause of action is subject to a six-year statute of limitations, however, plaintiff’s claims are barred to the extent that they allege the performance of services prior to April 25, 2007, which is six years from the commencement of the action … . Rauch v Ciardullo, 2015 NY Slip Op 02823, 3rd Dept 4-2-15

 

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