ANTHONY COMUSO PLAINTIFF APPELLANT v. ANTHONY COMUSO PLAINTIFF APPELLANT (2017)

MEMORANDUM AND ORDER

PRO SE.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Supreme Court properly granted defendants' motion for summary judgment dismissing plaintiff's complaint for psychological malpractice.  Defendants met their initial burden by establishing as a matter of law that, as a psychologist hired by plaintiff's employer for the sole purpose of assessing plaintiff's continued fitness for duty, defendant Jay A. Supnick did not have a doctor-patient relationship with plaintiff (see Gedon v. Bry–Lin Hosps., 286 A.D.2d 892, 893–894 [4th Dept 2001], lv denied 98 N.Y.2d 601 [2002];  Lee v. City of New York, 162 A.D.2d 34, 36–38 [2d Dept 1990], lv denied 78 N.Y.2d 863 [1991];  see generally Forrester v Zwanger–Pesiri Radiology Group, 274 A.D.2d 374, 374 [2d Dept 2000] ).  Plaintiff failed to raise a triable issue of fact to defeat the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ).  Moreover, plaintiff makes no claim that Supnick affirmatively treated, advised, or injured him during the assessment (cf.  Bazakos v. Lewis, 12 NY3d 631, 634–635 [2009];  Heller v. Peekskill Community Hosp., 198 A.D.2d 265, 266 [2d Dept 1993] ).  Thus, we conclude that “a cause of action sounding in [psychological] malpractice may not be maintained against the defendants” (Lee, 162 A.D.2d at 38;  see Gedon, 286 A.D.2d at 893–894).

Mark W. Bennett

Clerk of the Court