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NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 02/13/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
------------------------------------------------X Index No. 026910/2012
xxxxxx xxxxxxxx, on behalf of
an Infant under the age of 18, AFFIRMATION IN
and xxxxxx xxxxxxxx Individually, SUPPORT
Plaintiffs,
-against-
RONALD J. TADEO, M.D., RICHARD PITCH, M.D.,
SCOTT BERLIN, M.D.,SHORE PSYCHIATRIC CENTER,
FAMILY PSYCHOLOGY OF LONG ISLAND,
BERLIN OBGYN ASSOCIATES, JANSSEN
INC. k/n/a ORTHO-MCNEll-
PHARMACEUTICALS,
JANSSEN PHARMACEUTICALS, INC. and ZYDUS
PHARMACEUTICALS USA, INC.,
Defendants.
------------------------------------------------X
KEITH L. KAPLAN, ESQ., an attorney duly admitted to practice law in the Courts of the
State of New York, hereby affirms the following to be true pursuant to the penalties of perjury:
1. I am a member of the law firm of KAUFMAN BORGEEST & RYAN, LLP,
attorneys for Defendant FAMILY PSYCHOLOGY OF LONG ISLAND, P.C., s/h/a FAMILY
PSYCHOLOGY OF LONG ISLAND (hereinafter "Family Psychology") and as such am familiar
with the facts and circumstances surrounding this matter by virtue of my review of the file
materials maintained by my office.
2. This Affirmation is respectfully submitted in support of Family Psychology's
motion for an Order:
a) Pursuant to New York CPLR § 3212, granting Summary Judgment in Family
Psychology's favor and dismissing Plaintiff's Complaint as against it in its
entirety;
b) Directing the Clerk to enter Judgment in Family Psychology's favor; and
c) For such other further and different relief as the Court may deem just and
proper.
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PROCEDURAL HISTORY/PRELIMINARY STATEMENT
3. This hybrid products liability-medical malpractice lawsuit was commenced on
August 30, 2012, by Plaintiff xxxxxx xxxxxxxx, on behalf of herself and the infant-plaintiff C
S by the filing of a Summons and Complaint in Supreme Court, Suffolk County (Exhibit
"A"). Issue was joined on Family Psychology by the service of a Verified Answer, dated
October 2012 (Exhibit "B"). As revealed the annexed Answers of the respective Co-
18, by
"C").'
Defendants, no cross claims have been asserted against Family Psychology (Exhibit
4. In Plaintiff's Verified Bill of Particulars as to Family Psychology, (Exhibit "D"), it
is claimed that from 2007 - September prescribed
July 5, 24, 2009, Family Psychology
dangerous and contraindicated drugs with dangerous side effects (Topamax/Topiramate) to
"D"
Plaintiff, xxxxxx xxxxxxxx, (Exhibit at Para. 7), that resulted in the infant-plaintiff's
development of, among other things, a cleft palate, cleft lip, and hearing loss and impairment
"D"
(Exhibit at Para. No. 9). Itis also claimed that Family Psychology is vicariously liable for
"D"
Co-Defendant, Richard Pitch, M.D.'s, purported malpractice. (Exhibit at Para. No. 7). The
allegations of malpractice asserted against Dr. Pitch are identical to those made against
Family Psychology. Plaintiff's Verified Billof Particulars as against Dr. Pitch is annexed hereto
with Exhibit "E".
5. As set forth herein, Plaintiff's claims against Family Psychology, which are
predicated upon its purported vicarious for the care provided Co-
solely responsibility by
Defendant-Dr. Pitch, must be dismissed, as itcannot be held vicariously liable for Dr. Pitch, as
he was not itsemployee or agent.
"F" "G"
6. Annexed hereto as Exhibits and are the pertinent transcripts from the
depositions of Plaintiff, xxxxxx xxxxxxxx, (Exhibit "F"), and Dr. Pitch (Exhibit "G").
'
Plaintiffhas agreed to settle her claims against former Co-Defendants Janssen Pharmaceuticals, Inc.
and Zydus Pharmaceuticals
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7. Dr. Pitch's medical records are annexed hereto as Exhibit "H".
"I"
8. Annexed hereto as Exhibit is Family Psychology's February 11, 2013,
Response to Corñbiñêd Demands showing office space rental agreements made between Dr.
Pitch and Family Psychology.
9. As discussed herein, Plaintiff's claims against Family Psychology must be
dismissed, as itdid not itself render any care to Plaintiff and because Dr. Pitch is not itsagent or
contractor"
employee. Since Dr. Pitch acted as an "independent in connection with his
treatment of Plaintiff, for which Family Psychology cannot be held vicariously responsible,
disroissal of Plaintiff's claims against Family Psychology is warranted. Furthermore, as also
discussed below, Family Psychology may not be held vicariously liable for Dr. Pitch by any
theory of ostensible agency because itnever held Dr. Pitch out as itsagent.
STATEMENT OF FACTS
10. Plaintiff, xxxxxx xxxxxxxx's treatment with Co-Defendant Richard Pitch, M.D., a
"F"
psychiatrist, commenced on November 3, 2009. (See Exhibits at p. 290; see also Exhibit
"H"). Her treatment with Dr. Pitch took place at Family Psychology's office, located at 1563
"F"
Montauk Highway, Oakdale, New York 11769. (See Exhibits at p. 290; see also Exhibit
"H"). Prior to with Dr. Plaintiff was treated another Co-
treating Pitch, being by psychiatrist,
"F"
Defendant Dr. Ronald Tadeo. (See Exhibit at p. 156).
11. Upon the recommendation of Plaintiff's Dialectical Behavior therapist, Kim
"F"
Lehnert, Plaintiff switched her psychiatric care from Dr. Tadeo to Dr. Pitch (See Exhibit at
p. 226). Plaintiff testified at her deposition that Ms. Lehnert referred her directly to Dr. Pitch
"F" told"
(See Exhibit at pp. 226, 290),"repeatedly her that Dr. Tadeo was not the best doctor
Pitch." "F"
for her to see and that "she suggested Dr. (See Exhibit at p. 226). At no point in
Plaintiff's deposition did she testify that she was recommended or referred to Family
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Psychology for treatment or that she believed she was being treated through Family
Psychology. (See aerierally Exhibit "F").
12. Likewise, Dr. Pitch testified that Plaintiff was referred to him directly by Kim
"G"
Lehnert. (Exhibit at p. 23). Dr. Pitch also testified that he was not an employee of Family
Psychology, did not receive a salary from Family Psychology and confirmed that he rented
office space from Family for his own professional practice:
Q. During the years 2009 and 2010, you were employed by
Family Psychology of Long island?
A. No, I'm not employed by them. I rent space there. My rent
includes the room and all of the medical - the office
supplies and the secretarial staff services but I don't work
for Family Psychology.
Q. During the years 2009 and 2010, did you have your own
private practice?
A. This is - this is the same practice. I have been there
my
since 2003. The practice is me, but I am in that building,
Family Psychology of Long Island. It'sa loosely affiliated
group of psychologists and a psychiatrist. We all pay rent
to Family Psychology, but we're not part of his practice.
Q. From whom did you receive a salary, in the years 2009
and 2010.
A. No salary.
"G"
(Exhibit at pp. 15-16; see also Exhibit "I").
13. Dr. Pitch further testified that he had no responsibility or control over Family
Psychology's guidelines or protocols, nor had the ability to hire or fire anyone form Family
"G"
Psychology. (Exhibit at p. 19).
14. Dr. Pitch testified that only Mark Furshpan, Ph.D., Family Psychology's Chief
Executive Officer and sole shareholder, had hiring and firing responsibility at Family
practice."
Psychology, and that Dr. Furshpan "is Family Psychology of Long Island, that's his
"G"
(Exhibit at p. 19).
15. Plaintiff did not depose any witness employed by, or under control of, Family
Psychology, including Dr. Furshpan, whose Affidavit is annexed hereto. As set forth therein, Dr.
Furshpan states that Family Psychology is a group practice wherein multiple mental health
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professionals work in the same office (Dr. Furshpan Affidavit at Para. No. 2). Family
Psychology does not employ or pay any salary to any mental health professionals [other than
CEO-sole shareholder Dr. Furshpan] (Dr. Furshpan Affidavit at Para. Nos. 1 & 3). All affiliated
mental health professionals set their own hours and choose which medical insurance to accept
(Dr. Furshpan Affidavit at Para. No. 3).
16. Dr. Furshpan further sets forth that Dr. Pitch leased office space from Family
"G"
Psychology, paid monthly rent, (Dr. Furshpan Affidavit at Para. No. 6; see also Exhibits
and "H"), and maintained his own private insurance coverage, (Dr. Furshpan Affidavit at
Para. No. 3, see also Exhibit "G").
17. In view of the forgoing, Family Psychology has clearly established itsprima facie
entitlement to summary judgment as itcannot be held vicariously liable in connection with Dr.
Pitch's treatment of Plaintiff.
DEFENDANT'S POSITION
POINT I
FAMILY PSYCHOLOGY IS ENTITLED TO SUMMARY
JUDGMENT AS A MATTER OF LAW BECAUSE IT DID NOT
TREAT PLAINTIFF AND CANNOT BE HELD VICARIOUSLY
LIABLE FOR DR. PITCH'S ACTIONS, AS HE IS NOT ITS
EMPLOYEE. NOR IS HE ITS OSTENSIBLE AGENT
A. Family Psychology Is Not Vicariously Liable For Dr. Pitch, As He Was An
Independent Contractor.
18. "Although a hospital or other medical facility is liable for the negligence or
malpractice of itsemployees, that rule does not apply when the treatment is provided by an
independent physician . . . Nor is affiliation of a doctor with a hospita! or other medical facility,
not amounting to employment, alone sufficient to impute the doctor's negligent conduct to the
hospital or facility. Hill v. St. Clare's Hospital, 67 N.Y.2d 72, 79 (1986). "Generally, a hospital
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cannot be held vicariously liable for the malpractice of a private attending physician who is not
employee."
its Quezada v. O'Reilly-Green, 24 A.D.3d 744, 746 (2d Dep't 2005).
"employee" contractor"
19. The terms and "independent are familiar ones, and their
definitions are well known. Broadly speaking, "an employee is someone who works for another
subject to substantial control, not only over the results produced but also over the means used
to produce the results. A person who works for another subject to less extensive control is an
contractor."
independent Matter of O'Brien v. Spitzer, 7 N.Y.3d 239, 242 (2006). "[T]he critical
inquiry in determining whether an employment relationship exists pertains to the degree of
control exercised by the purported employer over the results produced or the means used to
results."
achieve the Bynoa v. Cioriani Group, Inc., 1 N.Y.3d 193, 198 (2003). Courts rely upon
a factors test relevant to assessing control, including whether the worker (1) worked at his own
convenience; (2) was free to engage in other employment; (3) received fringe benefits; (4) was
schedule."
on the employer's payroll; and (5) was on a fixed Bynoq, 1 N.Y.3d at 198.
20. Here, the subject lease agreement between Dr. Pitch and Family Psychology
clearly establishes that Dr. Pitch was not a Family Psychology employee, but rather, an
independent contractor who rented office space from Family Psychology and for whom itcannot
be held vicariously liable. (See Exhibit "I"). This Lease states that Dr. Pitch will "perform his
billing"
own and provides for a grace period in rental payment "to allow Dr. Pitch to start his
practice."
private (See Exhibit "I"). This is reinforced by a subsequent rental contract wherein
Dr. Pitch agrees to pay rent on a weekly basis to Family Psychology. (See Exhibit "I").
21. Moreover, Dr. Pitch testified that he does not work for Family Psychology, that he
them,"
is "not employed by and that he only leases space, including an office, filing cabinets,
"G"
and use of reception from Family Psychology. (See Exhibit at p. 16). Additionally, Dr.
Pitch testified as to his relationship in the same building at Family Psychology, stating, "I am in
that building, Family Psychology of Long Island. It's a loosely affiliated group of psychcIcgists
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practice."
and a psychiatrist. We all pay rent to Family Psychology, but we're not part of his
"G" "is"
(Exhibit at p. 16). Further, Dr. Pitch specifically testified that Dr. Furshpan Family
practice."
Psychology, stating that "he is Family Psychology of Long Island, that's his (Exhibit
"G"
at p. 19). Dr. Pitch also testified that he did not receive a salary from Family Psychology
"G"
and did he hold any administrative titles for the company. (Exhibit at pp. 19-20). An
independent contractor status is also shown because Dr. Pitch maintained his own insurance,
and was not covered by Family Psychology.
22. Both Family Psychology and Dr. Pitch understood that he was an independent
contractor and the rental agreements between them clearly denote that relationship. (See
Exhibits "G", "H", and "I"). Moreover, allof the factors which the Court of Appeals has held
determinative in assessing whether an individual is an independent contractor leads to the
conclusion that Dr. Pitch was an independent contractor and not an employee of Family
Psychology. See Bynoq, 1 N.Y.3d at 198.
23. Accordingly, since Dr. Pitch was not an employee of Family Psychology, Family
Psychology is not vicariously liable for any allegedly negligent acts or omissions on his behalf.
See Hill,67 N.Y.2d at 79, Quezada, 24 A.D.3d at 746.
B. Family Psychology Cannot Be Held Vicariously Liable For Dr. Pitch Under An
Ostensible Agency Theory.
24. "While vicarious liabilityfor medica! malpractice generally turns . .. on agency or
control in fact . . . [the Court of Appeals has also] recognized [control], as a predicate for
."
malpractice liability,apparent or ostensible agency . . . Hill,67 N.Y.2d at 79. "In order to
create such apparent agency, there must be words or conduct of the principal, communicated to
a third party, which give rise to the appearance and belief that the agent possesses the authority
to act on behalf of the principal. The third party must reasonably rely on the appearance of
authority, based on some misleading words or conduct by the principal, not the agent.
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Moreover, the third party must accept the services of the agent in reliance upon the perceived
skill."
relationship between the agent and the principal, and not in reliance on the agent's
Draqotta v. Southampton Hosp., 39 A.D.3d 697, 698 (2d Dep't 2007).
25. "There are two elements to such a claim of apparent or ostensible agency. To
estab!ish the position that the defendant held themselves out to be liable for an agent's actions,
the misleading words or conduct must be attributable to the principal [Family Psychology]. To
establish the position that the plaintiff relied upon those statements, the third party [plaintiff]
must accept the agent's [Dr. Pitch] services and submit to the agent's care in reliance on the
Psychology]."
belief that the agent was an employee of the principal [Family Draqotta, 39
A.D.3d at 698-99. "In the context of a medical malpractice action, the patient must have
reasonably believed that the physicians treating him or her were provided by the hospital or
behalf."
acted on the hospital's Draqotta, 39 A.D.3d at 698-99.
26. In a specific application of the ostensible agency rule, "a hospital may be held
vicariously liable for the acts of independent physicians if the patient . . . enters the hospital
through the emergency room and seeks treatment from the hospita!, not from a particular
physician."
Ryan v. New York City Health & Hosos. Coro., 220 A.D.2d 734, 736 (2d Dep't
1995), citing Mduba v. Benedictine Hosp_, 52 A.D.2d 450, 453 (3d Dep't 1976). Such a
scenario is inapp!!cable herein, as this case does not involve hospital or emergency
room care.
27. Here, first and foremost, ostensible agency cannot exist because Plaintiffwas not
referred to Family Psychology for treatment, but rather was expressly and directly referred to Dr.
"F"
Pitch. (See qenerally Exhibits and "G"). In order for ostensible agency to exist, the
patient must believe that the would-be vicariously liable party provided or directed its employee
to render her care. This belief must be based on the words or conduct of the principal (here,
Family Psychology) communicated to the patient, which give rise to the appearance and belief
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that the individual independent contractor physician possesses the authority to act on behalf of
the principal. S_ee Dragotta, 39 A.D.3d at 698. Family Psychology never communicated with
Plaintiff and did not, by words or conduct, communicate to Plaintiff that Dr. Pitch was itsagent or
employee. Further, Plaintiff cannot claim that she accepted Dr. Pitch's treatment as that of
Family Psychology because she was instructed and referred to meet and treat with Dr. Pitch
"F"
directly, instead of through Family Psychology. (Exhibit at P. 226).
28. Accordingly, Family Psychology cannot be held vicariously liable for the actions
or treatment of Dr. Pitch under any ostensible agency theory because Family Psychology never
held themselves out as principal over Dr. Pitch, nor did plaintiff rely on her treatment as that of
Family Psychology's. Consequently, Family Psychology must be granted summary judgment
and the complaint against itmust be dismissed.
CONCLUSION
PLAINTIFFS COMPLAINT SHOULD BE DISMISSED AND
SUMMARY JUDGMENTSHOULD BE GRANTEDIN FAVOROF
FAMILY PSYCHOLOGY
29. Based upon the itis clear that maintains no employer-
above, Family Psychology
employee relationship with Dr. Pitch, and that Plaintiff was referred to treat with Dr. Pitch
specifically. Further, Plaintiff's claims against Family Psychology must be dismissed because
no theory of ostensible agency can apply because Family Psychology did not hold itself out to
be the principal over Dr. Pitch, and Plaintiff did not believe Dr. Pitch to be an employee of
Family Psychology. Accordingly, itis respectfully requested that this Court grant the motion in
favor of Defendant Family Psychology of Long Island, and dismiss plaintiff's claims made
against it.
30. No prior application for the relief requested has been made.
WHEREFORE, based upon the foregoing, itis respectfully submitted that the within
motion should be granted in its entirety, granting Summary Judgment to Family Psychology and
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dismissing Plaintiff's Complaint as against itin its entirety, directing the Clerk to enter Judgment
in its favor, together with such other and further relief as this Court deems just and proper.
claims as against Family Psychology of Long Island.
Dated: Garden City, New York
January 9, 2019
KEITH L. KAPLAN
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
---------------------------------X
xxxxxx xxxxxxxx, on behalf of Index No.: 026910/2012
, an Infant under the age of 18,
and xxxxxx xxxxxxxx Individually,
AFFIDAVIT
Plaintiffs,
-against-
RONALD J. TADEO, M.D., RICHARD PITCH, M.D.,
SCOTT BERLIN, M.D.,SHORE PSYCHIATRIC
CENTER, FAMILY PSYCHOLOGY OF LONG ISLAND,
BERLIN OBGYN ASSOCIATES, JANSSEN
INC. k/n/a ORTHO-MCNEll-
PHARMACEUTICALS,
JANSSEN PHARMACEUTICALS, INC. and ZYDUS
PHARMACEUTICALS USA, INC.,
Defendants.
----------------------------------X
STATE OF NEW YORK )
) SS.:
COUNTY OF SUFFOLK )
MARK FURSHPAN, Ph.D., being over 18 years of age, being duly sworn, hereby
swears, under penalty of perjury as follows:
1. I am a clinical psychologist and the Chief Executive Officer and sole shareholder of
Defendant Family Psychology of Long Island, P.C. ("Family Psychology"), and as such,
am fullyfamiliar with allof the facts detailed within this Affidavit. During the relevant time
period at issue (July 5, 2007-September 24, 2009), I was (and stillam) the only mental
health professional employed by Family Psychology.
2. Family Psychology is located at 1563 Montauk Highway, Oakdale, New York 11769 and
was and stillis a group practice comprised of independent mental health professionals
working within the same office. Besides myself, none of the other independent mental
health professionals affiliated with Family Psychology are employed by it.
. . .. .
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3. The affiliated mental health professionals do not receive salaries from Family
Psychology. The affiliated mental health professionals lease office space from Family
Psychoicgy and pursuant to their leases, are provided with limited secretarial services,
including assistance in scheduling appointments and relaying telephone messages. The
affiliated mental health professionals billunder their respective license numbers and tax
identification numbers and maintain their own professional liabilityinsurance coverage.
4. All affiliated professionals set their own work hours and fees, decide which patients to
treat and accept insurance coverage from providers of their own choosing.
5. Neither I,individually, or in my capacity as Chief Executive Officer of Family Psychology,
direct or controi the clinical work of any of the other affiliated mental health professionals
at Family Psychology, including Co-Defendant Richard Pitch, M.D.
6. During the pertinent time period, and as reflected in Family Psychology's Response to
Combined Demands dated February 11, 2013, Dr. Pitch !eased office space and paid a
monthly rent. Pursuant to his lease/business agreement, Dr. Pitch was responsible for
managing the billing of his treatment procedure codes and fees and was paid directly to
his own tax identification number. As a courtesy to patients, patient payments made to
the respective affiliated mental health prefessionals via credit card were processed
through Family Psycholcgy's credit payment account. All affiliated mental health
professionals are reimbursed by Family Psychology for these credit card payments on a
weekly basis, less 2% bank charges.
7. Dr. Pitch rented a room within the office for up to five days per week. Dr. Pitch was not
an employee of Family Psychology during the relevant time period, and set his own work
schedule as he desired.
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RSHPAN, Ph.D.
Sworn to before me on this
8th
day of January, 2019
Kristin J. Novellino
Notary Public, State of New tork
otary Public
No. 01NO5077142
Qualified in Suffolk County
Commission Expires 2019
May 5,
5367538
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FILED: SUFFOLK COUNTY CLERK 02/13/2019 04:26 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 02/13/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ------------------------------------------------X Index No. 026910/2012 xxxxxx xxxxxxxx, on behalf of an Infant under the age of 18, AFFIRMATION IN and xxxxxx xxxxxxxx Individually, SUPPORT Plaintiffs, -against- RONALD J. TADEO, M.D., RICHARD PITCH, M.D., SCOTT BERLIN, M.D.,SHORE PSYCHIATRIC CENTER, FAMILY PSYCHOLOGY OF LONG ISLAND, BERLIN OBGYN ASSOCIATES, JANSSEN INC. k/n/a ORTHO-MCNEll- PHARMACEUTICALS, JANSSEN PHARMACEUTICALS, INC. and ZYDUS PHARMACEUTICALS USA, INC., Defendants. ------------------------------------------------X KEITH L. KAPLAN, ESQ., an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following to be true pursuant to the penalties of perjury: 1. I am a member of the law firm of KAUFMAN BORGEEST & RYAN, LLP, attorneys for Defendant FAMILY PSYCHOLOGY OF LONG ISLAND, P.C., s/h/a FAMILY PSYCHOLOGY OF LONG ISLAND (hereinafter "Family Psychology") and as such am familiar with the facts and circumstances surrounding this matter by virtue of my review of the file materials maintained by my office. 2. This Affirmation is respectfully submitted in support of Family Psychology's motion for an Order: a) Pursuant to New York CPLR § 3212, granting Summary Judgment in Family Psychology's favor and dismissing Plaintiff's Complaint as against it in its entirety; b) Directing the Clerk to enter Judgment in Family Psychology's favor; and c) For such other further and different relief as the Court may deem just and proper. 4 5367354 FILED: SUFFOLK COUNTY CLERK 02/13/2019 04:26 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 02/13/2019 PROCEDURAL HISTORY/PRELIMINARY STATEMENT 3. This hybrid products liability-medical malpractice lawsuit was commenced on August 30, 2012, by Plaintiff xxxxxx xxxxxxxx, on behalf of herself and the infant-plaintiff C S by the filing of a Summons and Complaint in Supreme Court, Suffolk County (Exhibit "A"). Issue was joined on Family Psychology by the service of a Verified Answer, dated October 2012 (Exhibit "B"). As revealed the annexed Answers of the respective Co- 18, by "C").' Defendants, no cross claims have been asserted against Family Psychology (Exhibit 4. In Plaintiff's Verified Bill of Particulars as to Family Psychology, (Exhibit "D"), it is claimed that from 2007 - September prescribed July 5, 24, 2009, Family Psychology dangerous and contraindicated drugs with dangerous side effects (Topamax/Topiramate) to "D" Plaintiff, xxxxxx xxxxxxxx, (Exhibit at Para. 7), that resulted in the infant-plaintiff's development of, among other things, a cleft palate, cleft lip, and hearing loss and impairment "D" (Exhibit at Para. No. 9). Itis also claimed that Family Psychology is vicariously liable for "D" Co-Defendant, Richard Pitch, M.D.'s, purported malpractice. (Exhibit at Para. No. 7). The allegations of malpractice asserted against Dr. Pitch are identical to those made against Family Psychology. Plaintiff's Verified Billof Particulars as against Dr. Pitch is annexed hereto with Exhibit "E". 5. As set forth herein, Plaintiff's claims against Family Psychology, which are predicated upon its purported vicarious for the care provided Co- solely responsibility by Defendant-Dr. Pitch, must be dismissed, as itcannot be held vicariously liable for Dr. Pitch, as he was not itsemployee or agent. "F" "G" 6. Annexed hereto as Exhibits and are the pertinent transcripts from the depositions of Plaintiff, xxxxxx xxxxxxxx, (Exhibit "F"), and Dr. Pitch (Exhibit "G"). ' Plaintiffhas agreed to settle her claims against former Co-Defendants Janssen Pharmaceuticals, Inc. and Zydus Pharmaceuticals 5 5367354 FILED: SUFFOLK COUNTY CLERK 02/13/2019 04:26 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 02/13/2019 7. Dr. Pitch's medical records are annexed hereto as Exhibit "H". "I" 8. Annexed hereto as Exhibit is Family Psychology's February 11, 2013, Response to Corñbiñêd Demands showing office space rental agreements made between Dr. Pitch and Family Psychology. 9. As discussed herein, Plaintiff's claims against Family Psychology must be dismissed, as itdid not itself render any care to Plaintiff and because Dr. Pitch is not itsagent or contractor" employee. Since Dr. Pitch acted as an "independent in connection with his treatment of Plaintiff, for which Family Psychology cannot be held vicariously responsible, disroissal of Plaintiff's claims against Family Psychology is warranted. Furthermore, as also discussed below, Family Psychology may not be held vicariously liable for Dr. Pitch by any theory of ostensible agency because itnever held Dr. Pitch out as itsagent. STATEMENT OF FACTS 10. Plaintiff, xxxxxx xxxxxxxx's treatment with Co-Defendant Richard Pitch, M.D., a "F" psychiatrist, commenced on November 3, 2009. (See Exhibits at p. 290; see also Exhibit "H"). Her treatment with Dr. Pitch took place at Family Psychology's office, located at 1563 "F" Montauk Highway, Oakdale, New York 11769. (See Exhibits at p. 290; see also Exhibit "H"). Prior to with Dr. Plaintiff was treated another Co- treating Pitch, being by psychiatrist, "F" Defendant Dr. Ronald Tadeo. (See Exhibit at p. 156). 11. Upon the recommendation of Plaintiff's Dialectical Behavior therapist, Kim "F" Lehnert, Plaintiff switched her psychiatric care from Dr. Tadeo to Dr. Pitch (See Exhibit at p. 226). Plaintiff testified at her deposition that Ms. Lehnert referred her directly to Dr. Pitch "F" told" (See Exhibit at pp. 226, 290),"repeatedly her that Dr. Tadeo was not the best doctor Pitch." "F" for her to see and that "she suggested Dr. (See Exhibit at p. 226). At no point in Plaintiff's deposition did she testify that she was recommended or referred to Family 6 5367354 FILED: SUFFOLK COUNTY CLERK 02/13/2019 04:26 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 02/13/2019 Psychology for treatment or that she believed she was being treated through Family Psychology. (See aerierally Exhibit "F"). 12. Likewise, Dr. Pitch testified that Plaintiff was referred to him directly by Kim "G" Lehnert. (Exhibit at p. 23). Dr. Pitch also testified that he was not an employee of Family Psychology, did not receive a salary from Family Psychology and confirmed that he rented office space from Family for his own professional practice: Q. During the years 2009 and 2010, you were employed by Family Psychology of Long island? A. No, I'm not employed by them. I rent space there. My rent includes the room and all of the medical - the office supplies and the secretarial staff services but I don't work for Family Psychology. Q. During the years 2009 and 2010, did you have your own private practice? A. This is - this is the same practice. I have been there my since 2003. The practice is me, but I am in that building, Family Psychology of Long Island. It'sa loosely affiliated group of psychologists and a psychiatrist. We all pay rent to Family Psychology, but we're not part of his practice. Q. From whom did you receive a salary, in the years 2009 and 2010. A. No salary. "G" (Exhibit at pp. 15-16; see also Exhibit "I"). 13. Dr. Pitch further testified that he had no responsibility or control over Family Psychology's guidelines or protocols, nor had the ability to hire or fire anyone form Family "G" Psychology. (Exhibit at p. 19). 14. Dr. Pitch testified that only Mark Furshpan, Ph.D., Family Psychology's Chief Executive Officer and sole shareholder, had hiring and firing responsibility at Family practice." Psychology, and that Dr. Furshpan "is Family Psychology of Long Island, that's his "G" (Exhibit at p. 19). 15. Plaintiff did not depose any witness employed by, or under control of, Family Psychology, including Dr. Furshpan, whose Affidavit is annexed hereto. As set forth therein, Dr. Furshpan states that Family Psychology is a group practice wherein multiple mental health 7 5367354 FILED: SUFFOLK COUNTY CLERK 02/13/2019 04:26 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 02/13/2019 professionals work in the same office (Dr. Furshpan Affidavit at Para. No. 2). Family Psychology does not employ or pay any salary to any mental health professionals [other than CEO-sole shareholder Dr. Furshpan] (Dr. Furshpan Affidavit at Para. Nos. 1 & 3). All affiliated mental health professionals set their own hours and choose which medical insurance to accept (Dr. Furshpan Affidavit at Para. No. 3). 16. Dr. Furshpan further sets forth that Dr. Pitch leased office space from Family "G" Psychology, paid monthly rent, (Dr. Furshpan Affidavit at Para. No. 6; see also Exhibits and "H"), and maintained his own private insurance coverage, (Dr. Furshpan Affidavit at Para. No. 3, see also Exhibit "G"). 17. In view of the forgoing, Family Psychology has clearly established itsprima facie entitlement to summary judgment as itcannot be held vicariously liable in connection with Dr. Pitch's treatment of Plaintiff. DEFENDANT'S POSITION POINT I FAMILY PSYCHOLOGY IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW BECAUSE IT DID NOT TREAT PLAINTIFF AND CANNOT BE HELD VICARIOUSLY LIABLE FOR DR. PITCH'S ACTIONS, AS HE IS NOT ITS EMPLOYEE. NOR IS HE ITS OSTENSIBLE AGENT A. Family Psychology Is Not Vicariously Liable For Dr. Pitch, As He Was An Independent Contractor. 18. "Although a hospital or other medical facility is liable for the negligence or malpractice of itsemployees, that rule does not apply when the treatment is provided by an independent physician . . . Nor is affiliation of a doctor with a hospita! or other medical facility, not amounting to employment, alone sufficient to impute the doctor's negligent conduct to the hospital or facility. Hill v. St. Clare's Hospital, 67 N.Y.2d 72, 79 (1986). "Generally, a hospital 8 5367354 FILED: SUFFOLK COUNTY CLERK 02/13/2019 04:26 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 02/13/2019 cannot be held vicariously liable for the malpractice of a private attending physician who is not employee." its Quezada v. O'Reilly-Green, 24 A.D.3d 744, 746 (2d Dep't 2005). "employee" contractor" 19. The terms and "independent are familiar ones, and their definitions are well known. Broadly speaking, "an employee is someone who works for another subject to substantial control, not only over the results produced but also over the means used to produce the results. A person who works for another subject to less extensive control is an contractor." independent Matter of O'Brien v. Spitzer, 7 N.Y.3d 239, 242 (2006). "[T]he critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to results." achieve the Bynoa v. Cioriani Group, Inc., 1 N.Y.3d 193, 198 (2003). Courts rely upon a factors test relevant to assessing control, including whether the worker (1) worked at his own convenience; (2) was free to engage in other employment; (3) received fringe benefits; (4) was schedule." on the employer's payroll; and (5) was on a fixed Bynoq, 1 N.Y.3d at 198. 20. Here, the subject lease agreement between Dr. Pitch and Family Psychology clearly establishes that Dr. Pitch was not a Family Psychology employee, but rather, an independent contractor who rented office space from Family Psychology and for whom itcannot be held vicariously liable. (See Exhibit "I"). This Lease states that Dr. Pitch will "perform his billing" own and provides for a grace period in rental payment "to allow Dr. Pitch to start his practice." private (See Exhibit "I"). This is reinforced by a subsequent rental contract wherein Dr. Pitch agrees to pay rent on a weekly basis to Family Psychology. (See Exhibit "I"). 21. Moreover, Dr. Pitch testified that he does not work for Family Psychology, that he them," is "not employed by and that he only leases space, including an office, filing cabinets, "G" and use of reception from Family Psychology. (See Exhibit at p. 16). Additionally, Dr. Pitch testified as to his relationship in the same building at Family Psychology, stating, "I am in that building, Family Psychology of Long Island. It's a loosely affiliated group of psychcIcgists 9 5367354 FILED: SUFFOLK COUNTY CLERK 02/13/2019 04:26 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 02/13/2019 practice." and a psychiatrist. We all pay rent to Family Psychology, but we're not part of his "G" "is" (Exhibit at p. 16). Further, Dr. Pitch specifically testified that Dr. Furshpan Family practice." Psychology, stating that "he is Family Psychology of Long Island, that's his (Exhibit "G" at p. 19). Dr. Pitch also testified that he did not receive a salary from Family Psychology "G" and did he hold any administrative titles for the company. (Exhibit at pp. 19-20). An independent contractor status is also shown because Dr. Pitch maintained his own insurance, and was not covered by Family Psychology. 22. Both Family Psychology and Dr. Pitch understood that he was an independent contractor and the rental agreements between them clearly denote that relationship. (See Exhibits "G", "H", and "I"). Moreover, allof the factors which the Court of Appeals has held determinative in assessing whether an individual is an independent contractor leads to the conclusion that Dr. Pitch was an independent contractor and not an employee of Family Psychology. See Bynoq, 1 N.Y.3d at 198. 23. Accordingly, since Dr. Pitch was not an employee of Family Psychology, Family Psychology is not vicariously liable for any allegedly negligent acts or omissions on his behalf. See Hill,67 N.Y.2d at 79, Quezada, 24 A.D.3d at 746. B. Family Psychology Cannot Be Held Vicariously Liable For Dr. Pitch Under An Ostensible Agency Theory. 24. "While vicarious liabilityfor medica! malpractice generally turns . .. on agency or control in fact . . . [the Court of Appeals has also] recognized [control], as a predicate for ." malpractice liability,apparent or ostensible agency . . . Hill,67 N.Y.2d at 79. "In order to create such apparent agency, there must be words or conduct of the principal, communicated to a third party, which give rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal. The third party must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent. 10 5367354 FILED: SUFFOLK COUNTY CLERK 02/13/2019 04:26 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 02/13/2019 Moreover, the third party must accept the services of the agent in reliance upon the perceived skill." relationship between the agent and the principal, and not in reliance on the agent's Draqotta v. Southampton Hosp., 39 A.D.3d 697, 698 (2d Dep't 2007). 25. "There are two elements to such a claim of apparent or ostensible agency. To estab!ish the position that the defendant held themselves out to be liable for an agent's actions, the misleading words or conduct must be attributable to the principal [Family Psychology]. To establish the position that the plaintiff relied upon those statements, the third party [plaintiff] must accept the agent's [Dr. Pitch] services and submit to the agent's care in reliance on the Psychology]." belief that the agent was an employee of the principal [Family Draqotta, 39 A.D.3d at 698-99. "In the context of a medical malpractice action, the patient must have reasonably believed that the physicians treating him or her were provided by the hospital or behalf." acted on the hospital's Draqotta, 39 A.D.3d at 698-99. 26. In a specific application of the ostensible agency rule, "a hospital may be held vicariously liable for the acts of independent physicians if the patient . . . enters the hospital through the emergency room and seeks treatment from the hospita!, not from a particular physician." Ryan v. New York City Health & Hosos. Coro., 220 A.D.2d 734, 736 (2d Dep't 1995), citing Mduba v. Benedictine Hosp_, 52 A.D.2d 450, 453 (3d Dep't 1976). Such a scenario is inapp!!cable herein, as this case does not involve hospital or emergency room care. 27. Here, first and foremost, ostensible agency cannot exist because Plaintiffwas not referred to Family Psychology for treatment, but rather was expressly and directly referred to Dr. "F" Pitch. (See qenerally Exhibits and "G"). In order for ostensible agency to exist, the patient must believe that the would-be vicariously liable party provided or directed its employee to render her care. This belief must be based on the words or conduct of the principal (here, Family Psychology) communicated to the patient, which give rise to the appearance and belief 11 5367354 FILED: SUFFOLK COUNTY CLERK 02/13/2019 04:26 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 02/13/2019 that the individual independent contractor physician possesses the authority to act on behalf of the principal. S_ee Dragotta, 39 A.D.3d at 698. Family Psychology never communicated with Plaintiff and did not, by words or conduct, communicate to Plaintiff that Dr. Pitch was itsagent or employee. Further, Plaintiff cannot claim that she accepted Dr. Pitch's treatment as that of Family Psychology because she was instructed and referred to meet and treat with Dr. Pitch "F" directly, instead of through Family Psychology. (Exhibit at P. 226). 28. Accordingly, Family Psychology cannot be held vicariously liable for the actions or treatment of Dr. Pitch under any ostensible agency theory because Family Psychology never held themselves out as principal over Dr. Pitch, nor did plaintiff rely on her treatment as that of Family Psychology's. Consequently, Family Psychology must be granted summary judgment and the complaint against itmust be dismissed. CONCLUSION PLAINTIFFS COMPLAINT SHOULD BE DISMISSED AND SUMMARY JUDGMENTSHOULD BE GRANTEDIN FAVOROF FAMILY PSYCHOLOGY 29. Based upon the itis clear that maintains no employer- above, Family Psychology employee relationship with Dr. Pitch, and that Plaintiff was referred to treat with Dr. Pitch specifically. Further, Plaintiff's claims against Family Psychology must be dismissed because no theory of ostensible agency can apply because Family Psychology did not hold itself out to be the principal over Dr. Pitch, and Plaintiff did not believe Dr. Pitch to be an employee of Family Psychology. Accordingly, itis respectfully requested that this Court grant the motion in favor of Defendant Family Psychology of Long Island, and dismiss plaintiff's claims made against it. 30. No prior application for the relief requested has been made. WHEREFORE, based upon the foregoing, itis respectfully submitted that the within motion should be granted in its entirety, granting Summary Judgment to Family Psychology and 12 5367354 FILED: SUFFOLK COUNTY CLERK 02/13/2019 04:26 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 02/13/2019 dismissing Plaintiff's Complaint as against itin its entirety, directing the Clerk to enter Judgment in its favor, together with such other and further relief as this Court deems just and proper. claims as against Family Psychology of Long Island. Dated: Garden City, New York January 9, 2019 KEITH L. KAPLAN 13 5367354 FILED: SUFFOLK COUNTY CLERK 02/13/2019 04:26 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 02/13/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------------------X xxxxxx xxxxxxxx, on behalf of Index No.: 026910/2012 , an Infant under the age of 18, and xxxxxx xxxxxxxx Individually, AFFIDAVIT Plaintiffs, -against- RONALD J. TADEO, M.D., RICHARD PITCH, M.D., SCOTT BERLIN, M.D.,SHORE PSYCHIATRIC CENTER, FAMILY PSYCHOLOGY OF LONG ISLAND, BERLIN OBGYN ASSOCIATES, JANSSEN INC. k/n/a ORTHO-MCNEll- PHARMACEUTICALS, JANSSEN PHARMACEUTICALS, INC. and ZYDUS PHARMACEUTICALS USA, INC., Defendants. ----------------------------------X STATE OF NEW YORK ) ) SS.: COUNTY OF SUFFOLK ) MARK FURSHPAN, Ph.D., being over 18 years of age, being duly sworn, hereby swears, under penalty of perjury as follows: 1. I am a clinical psychologist and the Chief Executive Officer and sole shareholder of Defendant Family Psychology of Long Island, P.C. ("Family Psychology"), and as such, am fullyfamiliar with allof the facts detailed within this Affidavit. During the relevant time period at issue (July 5, 2007-September 24, 2009), I was (and stillam) the only mental health professional employed by Family Psychology. 2. Family Psychology is located at 1563 Montauk Highway, Oakdale, New York 11769 and was and stillis a group practice comprised of independent mental health professionals working within the same office. Besides myself, none of the other independent mental health professionals affiliated with Family Psychology are employed by it. . . .. . 5367538 FILED: SUFFOLK COUNTY CLERK 02/13/2019 04:26 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 02/13/2019 3. The affiliated mental health professionals do not receive salaries from Family Psychology. The affiliated mental health professionals lease office space from Family Psychoicgy and pursuant to their leases, are provided with limited secretarial services, including assistance in scheduling appointments and relaying telephone messages. The affiliated mental health professionals billunder their respective license numbers and tax identification numbers and maintain their own professional liabilityinsurance coverage. 4. All affiliated professionals set their own work hours and fees, decide which patients to treat and accept insurance coverage from providers of their own choosing. 5. Neither I,individually, or in my capacity as Chief Executive Officer of Family Psychology, direct or controi the clinical work of any of the other affiliated mental health professionals at Family Psychology, including Co-Defendant Richard Pitch, M.D. 6. During the pertinent time period, and as reflected in Family Psychology's Response to Combined Demands dated February 11, 2013, Dr. Pitch !eased office space and paid a monthly rent. Pursuant to his lease/business agreement, Dr. Pitch was responsible for managing the billing of his treatment procedure codes and fees and was paid directly to his own tax identification number. As a courtesy to patients, patient payments made to the respective affiliated mental health prefessionals via credit card were processed through Family Psycholcgy's credit payment account. All affiliated mental health professionals are reimbursed by Family Psychology for these credit card payments on a weekly basis, less 2% bank charges. 7. Dr. Pitch rented a room within the office for up to five days per week. Dr. Pitch was not an employee of Family Psychology during the relevant time period, and set his own work schedule as he desired. 5367538 FILED: SUFFOLK COUNTY CLERK 02/13/2019 04:26 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 02/13/2019 RSHPAN, Ph.D. Sworn to before me on this 8th day of January, 2019 Kristin J. Novellino Notary Public, State of New tork otary Public No. 01NO5077142 Qualified in Suffolk County Commission Expires 2019 May 5, 5367538