RIZZO v. Anthony Polifrone, Defendant. (2021)

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered on or about June 12, 2019, which granted the motion of defendant Estate of Joseph Polifrone, M.D. for summary judgment dismissing plaintiff's complaint against him, unanimously affirmed, without costs.  Order, same court and Justice, entered on or about August 8, 2019, which granted the motion of defendant Annarose Polifrone, M.D. for summary judgment dismissing plaintiff's complaint against her, unanimously affirmed, without costs.

Plaintiff, who alleges that she was assaulted by defendant Anthony Polifrone while he performed physical therapy at the office of Dr. Joseph C. Polifrone, and while she was under the care of Dr. Annarose Polifrone, failed to adduce any evidence that Anthony had a propensity for such behavior and that defendant doctors were aware of it (see Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933, 693 N.Y.S.2d 67, 715 N.E.2d 95 [1999];  G.G. v. Yonkers Gen. Hosp., 50 A.D.3d 472, 858 N.Y.S.2d 11 [1st Dept. 2008];  T.W. v. City of New York, 286 A.D.2d 243, 729 N.Y.S.2d 96 [1st Dept. 2001]).  Plaintiff's assertion that she may nonetheless recover pursuant to the New York City Human Rights Law is unpersuasive, as such an interpretation is in conflict with the established body of law finding that an employer is generally not responsible pursuant to respondeat superior for assaults committed by their employees (see N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 765 N.E.2d 844 [2002]).  As for plaintiff's allegations that the doctors violated title VIII of the Education Law, no private right of action exists under the provision (see Kaspiev v. Pankova, 179 A.D.3d 513, 114 N.Y.S.3d 221 [1st Dept. 2020];  Requa v. Coopers & Lybrand, 303 A.D.2d 159, 756 N.Y.S.2d 43 [1st Dept. 2003]).

Plaintiff's claims of medical malpractice were also properly dismissed, as she proffered no expert opinion in support to rebut defendants' prima facie showing that nothing either doctor did was outside good and accepted medical practices (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986];  Ramirez v. Cruz, 92 A.D.3d 533, 938 N.Y.S.2d 540 [1st Dept. 2012]).  Plaintiff argues on appeal that she has a valid claim for lack of informed consent, but she pleaded no such claim, which is separate and distinct from general allegations of medical negligence (see Jolly v. Russell, 203 A.D.2d 527, 611 N.Y.S.2d 232 [2d Dept. 1994];  Dodes v. North Shore Univ. Hosp., 149 A.D.2d 455, 539 N.Y.S.2d 954 [2d Dept. 1989]).  Even if pleaded, the claim would also be subject to dismissal, as plaintiff failed to proffer an expert opinion establishing that the information disclosed to her about the risks inherent in any procedure performed by the doctors was qualitatively insufficient (see Rodriguez v. New York City Health & Hosps. Corp., 50 A.D.3d 464, 858 N.Y.S.2d 99 [1st Dept. 2008]).

We have considered plaintiff's remaining contentions and find them unavailing.