Judge Slams Law Firm's Frivolous Action (MORE, CLICK HERE)

Judge Faults NY Firm's "Frivolous" Pursuit Of Case
The New York Law Journal by Vesselin Mitev

A personal injury firm maintained a "frivolous" action against a psychologist "long after the record establishe[d]" it had no case, a Nassau County judge has ruled.

In awarding costs and fees to Ethel Cwibeker, Supreme Court Justice Karen V. Murphy found in Dunn v. Khan, 5494/05, that there was "no basis to hold [Ms. Cwibeker] at fault for any part of the plaintiff's cause of action" arising out of a suicide and, thus, sanctions under CPLR §8303-a were appropriate.

The decision will be published Wednesday.

On Sept. 28, 2007, Justice Murphy dismissed the complaint of Mitchell Dunn, brought on behalf of his deceased wife, Pauline, against Ms. Cwibeker, ruling that the psychologist had "submitted ample proof . . . that no doctor-patient relationship had ever been formed" between her and Ms. Dunn.

Albert B. Aquila, who represents Mr. Dunn, continued to allege in an interview yesterday that Ms. Dunn was a patient of Ms. Cwibeker. He said Ms. Cwibeker saw Ms. Dunn twice before her Aug. 25, 2003, death. Ms. Dunn is believed to have taken her own life after being hospitalized. Ms. Cwibeker "saw her in the hospital for a session and she saw her the day before she committed suicide," said Mr. Aquila of Sullivan, Papain, Block, McGrath & Cannavo in Mineola.

Mr. Aquila said his firm would appeal the sanctions decision, which "goes against case law." And, although the judge noted that Mr. Dunn did not oppose the summary judgment motion, Mr. Aquila said he has appealed the dismissal of claims against the psychologist.

According to the decision, on Feb. 18, 2005, Mr. Aquila requested copies of Ms. Cwibeker's office records relating to her treatment of Ms. Dunn. The psychologist wrote back that she was not a medical doctor and had only seen Ms. Dunn twice prior to her death. Another letter seeking copies of Ms. Cwibeker's "psychotherapy and counseling notes" followed on March 7, 2005, to which the psychologist responded in a similar vein.

The initial action commenced on April 26, 2005, with Mr. Dunn alleging that Ms. Cwibeker had 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." An additional action, making the same allegations of medical and psychiatric malpractice against Ms. Cwibeker was commenced on Feb. 10, 2006. In reply to a discovery request seeking evidence that Ms. Cwibeker had rendered medical or psychological care to Ms. Dunn during the time claimed by Mr. Dunn, "plaintiff stated that there are no such records."

According to the decision, Mr. Dunn admitted at a deposition conducted on July 25 and Aug. 4, 2006, that "he and his wife, Pauline, met the defendant, Ms. Cwibeker for the first time on August 15, 2003" concerning their child's suicide attempt. That admission was fatal to Mr. Dunn's case, said Rachel Yosevitz Weisman, who represented Ms. Cwibeker.

Ms. Cwibeker "was not the doctor and the deceased was not her patient - there were no records [Ms. Dunn] had ever been a patient," Ms. Weisman, of the Weisman Law Group in Cedarhurst, said in an interview.

Justice Murphy acknowledged that under some circumstances, Mr. Aquila did not have to "unconditionally accept Ms. Cwibeker's blanket denials" of any doctor-patient relationship with Ms. Dunn. But in this case, "absent a scintilla of evidence to the contrary," Mr. Aquila was obligated to accept her denials as true.

"Plaintiff had no evidence to support his allegations that the defendant was the decedent's therapist or that defendant had met and rendered 'medical or psychological care and services to the decedent . . . from on or about October 2002 continuously up through and including August 25, 2003,'" wrote the judge.

Even if the action had been commenced in good faith, it should have been withdrawn after "it became clear that there was no basis to hold [Ms. Cwibeker] at fault for any part of the plaintiff's cause of action," Justice Murphy wrote.

The judge said Mr. Dunn's action should have been unconditionally withdrawn and discontinued against Ms. Cwibeker. Thus, she concluded that its continuation had been frivolous, a finding that mandated the granting of costs, sanctions and reasonable attorney's fees. Ms. Weisman said the fees could amount to around $75,000.

A hearing will be held on March 25 to determine the amount of the sanctions and whether the fees will be paid by Mr. Aquila's firm or by Mr. Dunn.