Summary
finding plaintiff's allegation that defendant used non-board-certified physician as expert witness to be insufficient to state a claim for legal malpractice
Summary of this case from Achtman v. Kirby, McInerney & Squire, LLPOpinion
February 25, 1999
Appeal from the Supreme Court, New York County (Leland DeGrasse, J.).
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, lv dismissed 74 N.Y.2d 892). 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; Kenney v. Zimmerman, 185 A.D.2d 690).
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., 81 N.Y.2d 115, 121-122). 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 ( supra).
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).
Concur — Sullivan, J. P., Nardelli, Wallach and Tom, JJ.