GELLER v. HARRIS

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Supreme Court, Appellate Division, First Department, New York.

Hani GELLER (Chen), Plaintiff-Appellant, v. Steven HARRIS, Defendant-Respondent.

Decided: February 25, 1999

SULLIVAN, J.P., NARDELLI, WALLACH and TOM, JJ. Thaniel J. Beinert, for Plaintiff-Appellant. Mark K. Anesh, for Defendant-Respondent.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about June 29, 1998, which dismissed plaintiff's complaint for failure to state a cause of action, unanimously affirmed, without costs.

 Plaintiff's allegation, in conclusory terms, that defendant's use of a non-board certified physician as an expert witness in the underlying medical malpractice action resulted in an unfavorable disposition for plaintiff, is insufficient to state a claim for legal malpractice (see, Pacesetter Communications Corp. v. Solin & Breindel, 150 A.D.2d 232, 541 N.Y.S.2d 404, lv. dismissed 74 N.Y.2d 892, 547 N.Y.S.2d 849, 547 N.E.2d 104).   In any event, defendant's decision to use a non-board certified physician was, at most, a mere error in professional judgment not rising to the level of legal malpractice (see, Rosner v. Paley, 65 N.Y.2d 736, 492 N.Y.S.2d 13, 481 N.E.2d 553;  Kenney v. Zimmerman, 185 A.D.2d 690, 586 N.Y.S.2d 80).

 Plaintiff's claim for intentional infliction of emotional distress was properly dismissed since there is no allegation that the statement made by defendant was intended to cause plaintiff severe emotional distress (Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121-122, 596 N.Y.S.2d 350, 612 N.E.2d 699).   Nor does the statement that the defendant doctor in the underlying medical malpractice action was allegedly connected to organized crime rise to the level of “extreme outrageousness” necessary to sustain a cause of action for intentional infliction of emotional distress (id.).

 Finally, the claim for abuse of process was properly dismissed since there was no allegation that the order of protection obtained by defendant against plaintiff was improperly used by defendant after it was issued or that the process interfered with plaintiff's liberty or property (Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324).

MEMORANDUM DECISION.