Opinion
2002-04017
Argued June 2, 2003.
June 23, 2003.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Winslow, J.), entered April 4, 2002, as granted the motion of the defendant Steven A. Fayer for summary judgment dismissing the complaint insofar as asserted against him and denied that branch of the plaintiff's cross motion which was for leave to amend the complaint.
David B. Jacobs, Freeport, N.Y., appellant pro se.
Wilson, Elser, Moskowitz, Edelman, Dicker, LLP, New York, N.Y. (Daniel G. Ecker and James Brown of counsel), for defendant-respondent.
Jaspan Schlesinger Hoffman, LLP, Garden City, N.Y. (Stanley A. Camhi and D. James Gounelas of counsel), for nonparty-respondent pro se and defendants.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
In June 2000, in response to a request from the defendant Board of Education of the Roosevelt Union Free School District, the defendant Steven A. Fayer, a licensed psychiatrist, conducted an evaluation of the plaintiff's fitness to teach. After examining the plaintiff and administering certain tests, Dr. Fayer concluded that the plaintiff suffered from a condition that rendered him unable to perform his job as a teacher.
The Supreme Court properly granted summary judgment to Dr. Fayer dismissing the complaint insofar as asserted against him. In response to Dr. Fayer's prima facie showing of entitlement to judgment as a matter of law, the plaintiff merely asserted unsubstantiated allegations which were insufficient to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562). With respect to the plaintiff's causes of action alleging psychiatric malpractice, negligence, and negligent infliction of emotional distress, the plaintiff failed to demonstrate the existence of a physician-patient relationship or the breach of any duty owed to him (see Losquadro v. Winthrop Univ. Hosp., 216 A.D.2d 533, 534; Violandi v. City of New York, 184 A.D.2d 364, 365; Murphy v. Blum, 160 A.D.2d 914, 915).
In addition, the plaintiff failed to come forward with any evidence that Dr. Fayer made misrepresentations in order to deceive him or that he was induced to act by any such misrepresentations to support a cause of action alleging fraud (see Pappas v. Harrow Stores, 140 A.D.2d 501, 504; cf. Jo Ann Homes at Bellmore v. Dworetz, 25 N.Y.2d 112, 119). The plaintiff also presented no evidence that Dr. Fayer intended to harm him to support a cause of action alleging prima facie tort (see Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142-143). Similarly, he offered no proof of intentional or outrageous conduct on the part of Dr. Fayer to support a cause of action alleging intentional infliction of emotional distress (see Howell v. New York Post Co., 81 N.Y.2d 115, 121-122).
The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's cross motion which was for leave to amend the complaint as there was no merit to the proposed amended pleading (see Kaplansky v. Kaplansky, 212 A.D.2d 667, 667-668; Del Bourgo v. 138 Sidelines Corp., 208 A.D.2d 795, 796).
ALTMAN, J.P., KRAUSMAN, LUCIANO and CRANE, JJ., concur.