Opinion
13796/04.
Decided May 11, 2005.
Defendants' move to dismiss the complaint for failure to state a cause of action as a matter of law as well as plaintiff's failure to obtain personal jurisdiction over the defendants pursuant to CPLR § 3211(a)(7) and (8).
In the instant action, the plaintiffs are suing defendants for defendant Dr. Henley's refusal to testify as an expert orthopedist at a trial on behalf of the deceased plaintiff. Plaintiffs allege that defendant is liable for gross professional misconduct and malpractice as well as acting with intent to harm.
The plaintiffs contend that on February 22, 1998, Philip Politico tripped and fell in Florida at the Promus Hotel sustaining serious injuries. Philip Politico has since passed away from unrelated causes. On March 31, 1999, a lawsuit on behalf of Mr.Politico was instituted by his attorney Raymond Lynch against Promus Hotels, Inc., in the United States District Court, Eastern District of New York.
Plaintiffs' attorney alleges that he entered into a "solemn promise" creating a "quasi-contractual" agreement with defendant Henley requiring that she testify as an expert orthopedist in that lawsuit. In their complaint, plaintiffs' allege that as a result of the foregoing appointment with Dr. Henley, Mr. Lynch disclosed her as his expert in that underlying trip and fall case. Although the underlying trip and fall case was filed in federal court, Dr. Henley was never deposed as an expert witness on behalf of the deceased Mr. Politico and/or his mother, Patricia Reilly, his executrix.
Dr. Henley alleges she never agreed either orally or in writing to testify as an expert on behalf of either Mr. Politico and/or his mother, Patricia Reilly. Dr. Henley states she never met or treated the deceased. In sum, defendant Dr. Henley alleges no professional relationship ever existed between her and either Mr. Lynch, the deceased and/or his mother Patricia Reilly.
In his affirmation in opposition dated March 8, 2005, plaintiffs' counsel, Mr. Lynch, erroneously states that the complaint commencing this action contained about five or six causes of actions. However, a basic reading of the complaint reveals the plaintiffs have alleged only two causes of action, sounding in gross professional misconduct and malpractice and intent to harm. Neither the words "contract" and/or "breach of contract", nor the concept of an offer, acceptance, and/or consideration, which are legally required to form a contract are found within the complaint.
The theory of quasi contract applies exclusively in the absence of an express agreement to create a legal obligation solely to prevent a party's unjust enrichment pursuant to the reliance and at the expense of a second injured party. ( Clark-Fitzpatrick v. Long Island R. Co., 70 NY2d 382). Without a finding of unjust enrichment on behalf of the party allegedly causing the harm, there can be no recovery for breach of a quasi contract. ( Id. Bradkin v. Leverton, 26 NY2d 192,) (1970). In this matter, this Court does not find that any implied and/or "quasi" contract existed between Dr. Henley and either plaintiffs and/or Mr. Lynch. A contract to retain an expert witness is not a contract implied by law, especially in a case such as this, where there has been no claim that either defendant was unjustly enriched. To the contrary, there is no dispute that Dr. Henley neither sought nor received any payment from the plaintiffs or their representatives.
In order to establish a prima facie case for intentional harm, evidence for intentional wrongdoing must be present.
The Court of Appeals has defined a prima facie tort of infliction of intentional harm as the infliction of intentional harm, resulting in damage, without excuse or justification, by an act or a series of acts which would otherwise be lawful. (Freihofer v. Hearst Corporation, 65 NY2d 135) (1985).
Plaintiffs' allege that Dr. Henley's refusal to testify on behalf of the plaintiffs' was based solely on her intent to injure and damage the plaintiffs. Dr. Henley contends she did not testify on plaintiffs' behalf because she never treated Mr. Politico nor did she agree to testify as an expert witness.
In the case at bar, the plaintiff fails to make a prima facie case that Dr. Henley ever acted with the sole intent to injure and/or damage the plaintiffs. As such, this claim must be dismissed in its entirety with prejudice.
Furthermore the plaintiffs' have failed to establish a viable cause of action sounding in professional malpractice. It is not disputed by the plaintiffs that Dr. Henley neither treated nor examined Mr. Politico at any time. It is undisputed that Dr. Henley did not have any professional relationship with Mr. Politico, therefore, she owed no duty of care. Plaintiff's claim sounding in professional malpractice must, therefore, be dismissed with prejudice since there is no viable claim as a matter of law sounding in professional malpractice.
Doctor Henley in her affidavit argues that she was never personally served with a Summons and Complaint in this case. Defendant Healthcare Associates argues in the affidavit of Kathleen Tramontana, the Associate Healthcare Administrator of defendant corporation that neither Healthcare Associates nor any of its departments including Orthopaedics Associates of New York have been served with the summons and complaint pertaining to this matter. Specifically, no authorized person to accept service on the corporation's behalf had been served with the summons and complaint. It is recognized that even where a defendant acquires actual notice of a lawsuit, that fact alone is not sufficient to sustain defective service. (see Feinstein v. Bergner, 48 NY2d 234) (1979) ( Banker's Trust 303 AD2d 343 ) (2nd Dept. 2003). The receipt of actual notice of a suit does not cure a defect since notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court. (Feinstein v. Bergner, 48 NY2d 234) (1979).
Therefore, this action must be dismissed for lack of personal jurisdiction as plaintiffs have failed to meet their burden through admissible evidence disputing defendants sworn testimony that plaintiffs have failed to serve the defendants in the properly prescribed statutory manner.
Accordingly, the defendants motion to dismiss the complaint is granted in its entirety with prejudice and with costs and disbursements awarded to the defendants'.
This shall constitute the decision and order of the Court.