Opinion
16-P-1192
04-03-2017
Suarna MEHULIC v. Farzaneh A. NABIZADEH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a judgment of the Superior Court dismissing her complaint on the basis of the statute of limitations. We discern no error in the motion judge's thorough written memorandum of decision, and affirm.
On appeal, the plaintiff acknowledges that the defendant's testimony before the New York Department of Health in 2011 is subject to absolute immunity. However, the plaintiff nonetheless contends that she is entitled to pursue claims sounding in tort against the defendant, by complaint filed in 2014, based on the defendant's statements and actions in 2007 and 2008. For substantially the reasons explained by the motion judge, we disagree.
As a threshold matter, we discern no error of law or abuse of discretion in the denial by the motion judge of the plaintiff's request for additional discovery. As the motion judge observed, the question before the court on the defendant's motion for summary judgment was the application of the statute of limitations to the plaintiff's claims. As we discuss below, the timeliness of the plaintiff's complaint turns on the date on which the plaintiff suffered injury by reason of the defendant's alleged acts. The timing of both the defendant's acts and the plaintiff's injury were established on the summary judgment record and, as the motion judge noted, the plaintiff's motion and affidavit do not explain why she was unable to respond to the timeliness issue without the testimony of the three doctors named in the affidavit, or further deposition testimony from the defendant. While further discovery would shed additional light on the scope and details of the alleged wrongdoing, and the extent of damage incurred by the plaintiff as a result thereof, that does not bear on the central question of timeliness framed by the defendant's motion for summary judgment.
On the statute of limitations itself, it is plain from the plaintiff's verified complaint and the additional materials in the summary judgment record that the plaintiff was aware of the defendant's harassment of her, and of the defendant's false reports about the plaintiff's care of patients, during 2007 and 2008, and that the plaintiff was aware that the defendant's acts contributed to her termination by the New York Downtown Hospital (hospital) on April 18, 2008; indeed the plaintiff's complaint in her action against the hospital and her deposition testimony in that action relied extensively on both the injury incurred by virtue of that termination and the contribution of the defendant's acts to that injury. Though the plaintiff claims she later suffered additional injury when the New York Department of Health placed restrictions on her license to practice medicine, that additional injury does not give rise to a new cause of action against the defendant or otherwise affect the date on which her cause of action accrued. See Gore v. Daniel O'Connell's Sons, Inc., 17 Mass. App. Ct. 645, 649 (1984) ("statute of limitations does not stay in suspense until the full extent, gravity, or permanence" of the injury is known).
It is possible that the additional injury might bear on the damages the plaintiff may claim and recover in her earlier-filed action against the hospital.
There is likewise no basis for the plaintiff's contention that her claims should be equitably tolled, as nothing in the defendant's alleged acts of concealment impaired the plaintiff's ability to recognize or pursue her claims in a timely manner; again, the plaintiff's own complaint against the hospital in 2008 illustrates the plaintiff's awareness that the defendant's pretermination acts caused her actionable injury.
We note in addition that the plaintiff received notice in mid-2009 that the New York Department of Health was investigating a complaint against her.
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Finally, there is no merit to the plaintiff's contention that the defendant's tortious acts constitute a continuing tort, so that the statute of limitations did not run before she filed her complaint. The argument is unavailing, as the acts of the defendant on which the plaintiff's claims are based all occurred during the time of her employment by the hospital, in 2007 and 2008, with the exception of the defendant's testimony in the 2011 New York Department of Health proceedings which, as previously observed, the plaintiff acknowledges is subject to absolute immunity.
Judgment affirmed.