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Plaintiff Brings Suit for Malpractice in Divorce Proceeding

This is an action to recover damages for negligence and malpractice.

A New York Family Lawyer said that in the first, third, fifth, and seventh causes of action, plaintiff sought to recover damages for the alleged negligence and malpractice of defendants in the performance of their work in the divorce and custody litigation.

Defendants were psychologists and social workers, some of whom were appointed by the Supreme Court as neutral experts in the plaintiff’s divorce action, and others by the Family Court in a neglect proceeding which was brought against the plaintiff’s wife to aid the court in making determinations about custody of, and visitation with, the plaintiff’s children. In support of their respective motions to dismiss, defendants submitted affidavits concerning their work in the previous litigation and the orders pursuant to which they were appointed to aid the courts.

A New York Custody Lawyer said that on 2 April 2010, the Supreme Court of Suffolk County granted: that branch of the motion of defendants A, B, and C which was pursuant to CPLR 3211(a)(7) to dismiss the first and second causes of action; that branch of the separate motion of the defendant D which was pursuant to CPLR 3211(a)(7) to dismiss the third and fourth causes of action insofar as asserted against him; that branch of the separate motion of the defendant E which was pursuant to CPLR 3211(a)(7) to dismiss the third and fourth causes of action insofar as asserted against her; and, those branches of the separate motion of the defendants F, G, H, I, J, and K which were pursuant to CPLR 3211(a)(7) to dismiss the sixth cause of action and pursuant to CPLR 3212 for summary judgment dismissing the fifth and seventh causes of action.
Plaintiff appealed.

A Staten Island Family Lawyer said that on appeal, the order was affirmed, with one bill of costs to the defendants appearing separately and filing separate briefs.

Under the law and rules, “on a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” “Where evidentiary material is submitted and considered on a motion to dismiss a complaint, and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate.” Evidence submitted by a defendant in support of a motion pursuant to CPLR 3211(a)(7) does not warrant dismissal unless it “conclusively” establishes that the plaintiff has no cause of action.

A Staten Island Child Custody Lawyer said that first, the evidentiary material submitted by defendants on their respective motions established conclusively that judicial immunity precludes the plaintiff from recovering damages for negligence or malpractice against them. Thus, the Supreme Court properly granted those branches of the separate motions of defendants A, B, C, D, and E, which were pursuant to CPLR 3211(a)(7) to dismiss the first and third causes of action.

Second, defendants F, G, H, I, J and K established their prima facie entitlement to judgment as a matter of law dismissing the fifth and seventh causes of action on the ground of judicial immunity. Plaintiff failed in its opposition to raise a triable issue of fact. Thus, the Supreme Court properly granted that branch of defendants’ motion which was pursuant to CPLR 3212 for summary judgment dismissing those causes of action.

Lastly, the second, fourth, and sixth causes of action were, in effect, pursuant to Social Services Law § 420 to recover damages for emotional distress and additional attorneys’ fees plaintiff allegedly incurred due to the alleged failure of all defendants, except F, to report suspected child abuse pursuant to Social Services Law § 413 and to cause the children to be placed in protective custody pursuant to Social Services Law § 417. As the rules provide, an injured child may assert a cause of action for damages under Social Services Law § 420 for alleged violations of sections 413 and 417 which were enacted to protect children from physical abuse. However, these statutes do not provide a cause of action for the parent of the alleged abused child’s injuries. Furthermore, under the plain language of section 417, the defendants do not fall within the limited class of persons subject to liability under that section. Thus, accepting the allegations of the complaint as true, the second, fourth, and sixth causes of action failed to state a cognizable claim, and the Supreme Court properly dismissed them pursuant to CPLR 3211(a)(7).

In light of the foregoing, it became unnecessary to reach the parties’ remaining contentions.
Stephen Bilkis & Associates has the experts you need in numerous fields of law. If you have questions regarding issues like the one tackled above, please feel free to call our toll free number or visit our place of business. Our Suffolk County Child Custody Lawyers, Suffolk County Child Visitation Lawyers, and the like, will gladly be of servic

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