Opinion
INDEX NO. 160330/2016
07-24-2018
SIDRA SAUCEDO Plaintiff, v. ROGER PIERANGELO, Defendant.
NYSCEF DOC. NO. 69 PRESENT: HON. W. FRANC PERRY Justice MOTION DATE 05/10/2018 MOTION SEQ. NO. 001
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 64, 65, 68 were read on this motion to/for DISMISSAL.
Plaintiff commenced this negligence/malpractice action against defendant, Roger Pierangelo, a Nassau County Parent Coordinator, during the pendency of a custody action in Nassau County Supreme Court. In the custody action, the Nassau County Supreme Court so-ordered a stipulation on January 10, 2012 between the child's parents directing, among other things, that the parties retain a Parent Coordinator, defendant herein.
Defendant now moves for an order pursuant to CPLR §3211(a)(7), dismissing the complaint on the grounds that it fails to state a cause of action and on the grounds that the Eleventh Amendment bars plaintiff from seeking damages against defendant, since he was, at all times stated within the complaint, acting in his quasi-official capacity as a Court-approved Nassau County Parent Coordinator, and as such should be afforded judicial immunity from the instant action. Defendant also seeks an order pursuant to CPLR §3211(a)(1); CPLR §3211(d); and CPLR §3211(a)(5), dismissing the action on the grounds that it is time barred by the applicable statute of limitations. Additionally, defendant seeks sanctions against plaintiff for commencing a frivolous action, claiming that this lawsuit is retaliatory in nature, intended to malign, harass and punish defendant who has worked for years as a Parent Coordinator for the Nassau County court system. Plaintiff opposes the motion.
FACTUAL BACKGROUND and CONTENTIONS
On February 16, 2018, Honorable Stacy D. Bennett, A.J.S.C., issued a forty-three (43) page decision, in a protracted Nassau County custody action between plaintiff herein and the father of her child, granting the father's motion for suspension of the mother's parental access and denying the mother's request for supervised visitation. Schonfeld v Saucedo, Sup Ct, Nassau County, February 16, 2018, Bennett, J., Index No. 203312/13. Judge Bennett summarized the testimony of defendant herein, Roger Pierangelo PhD, who was called as a witness by the father in the custody action, as Dr. Pierangleo had acted as the parties' Parent Coordinator for five years, as ordered by the court in February 2012. Id at 18-22; (McNamara Aff., Ex. E, p.12).
In her decision, Judge Bennett noted that the hearing commenced on October 5, 2015 and spanned over 55 days concluding on February 3, 2017; Judge Bennett also noted that the "parties herein have a long history of litigation before this court, however the first custody and access order was granted in Texas on January 17, 2006." Id. Thereafter, in November, 2008 the parties sought to modify the Texas Order. Id. The father again filed a modification petition in Nassau County, Family Court in 2010 and on January 10, 2012 the parties entered into a stipulation which modified the prior orders and provided that the father would have sole legal and physical custody of the child. Id. at 2. On February 29, 2012 Judge Bennett entered an Order with respect to the stipulated issues of custody and access, which stipulation also provided "that the parties were to select a parent coordinator to facilitate communication regarding the child." Id.
As noted by Judge Bennett, during the hearing on the father's emergency application filed on December 10, 2013, the mother, sought to preclude the testimony and records of Dr. Pierangelo, which was denied by the court and over the mother's objection, Dr. Pierangleo was deemed an expert in child and adult psychology and testified for ten days as the stipulated Parent Coordinator.
The instant action was commenced by plaintiff on December 8, 2016 against Dr. Pierangelo, alleging five causes of action for professional malpractice, breach of fiduciary duty, negligence, violation of HIPAA and intentional infliction of emotional distress. (McNamara Aff., Ex. A). In response to the complaint, defendant filed the within motion seeking dismissal of the complaint and sanctions. Defendant contends that plaintiff should be barred from suing Dr. Pierangelo since he was acting in his quasi-official capacity as a Nassau County Parent Coordinator and as such is afforded judicial immunity. Defendant argues that he has demonstrated that judicial immunity should attach to the services he rendered, as a Parent Coordinator, to plaintiff during her participation in protracted custody litigation. In that action, the court ordered the parties to select a "Parenting Coordinator to help facilitate communication" and directed the parties to "cooperate fully with the Parenting Coordinator". (McNamara Aff., Ex. E, p.12). Dr. Pierangelo was ultimately selected by the parties, in accordance with the court's order in the custody action.
Despite documentary evidence demonstrating that Dr. Pierangelo was selected by plaintiff and her child's father, to act as the Parent Coordinator pursuant to the court-ordered parenting plan resolving the custody litigation, (McNamara Aff., Ex. E, p.12), here plaintiff argues that Dr. Pierangelo was not appointed by the court because the court proceedings were concluded when plaintiff met with and agreed to retain Dr. Pierangelo in February, 2012. (Zuccardy Aff., ¶7). Additionally, plaintiff claims that there is no evidence that Nassau County had a Parenting Coordination Program and that the father had prior relationship with Dr. Pierangelo which plaintiff was unaware of. (Zuccardy Aff. in Opp., ¶¶ 11-12; 17-19).
Plaintiff contends that Dr. Pierangelo diagnosed her without her knowledge or consent and throughout the parent coordination process, insisted on adherence to his "byzantine rules" and that Dr. Pierangelo even threatened to take legal action against plaintiff because she did not take her child to a birthday party. (Zuccardy Aff., Ex. 11). Finally, plaintiff contends that this action has legal merit because she consulted with a licensed psychologist prior to commencing this action and that psychologist concluded that there is a reasonable legal basis to impose liability against Dr. Pierangelo who privately contracted to provide services to plaintiff under the mantle of parenting coordination.
Defendant argues that he should be afforded judicial immunity from the instant lawsuit because at all times stated in the complaint; he was acting in his quasi-official capacity as a Nassau County Parent Coordinator. Additionally, defendant argues that the plaintiff's causes of action sounding in negligence, breach of fiduciary duty and intentional infliction of emotional distress are all time barred and must be dismissed. Finally, defendant is seeking sanctions against plaintiff for commencing and maintaining this lawsuit which he claims is retaliatory in nature as plaintiff was simply unhappy with the decision rendered in the custody litigation where defendant rendered his services as a parent coordinator pursuant to the court's order. For the reasons that follow, defendant's motion to dismiss is granted.
STANDARD OF REVIEW and ANALYSIS
On a motion to dismiss pursuant to CPLR §3211, the Court must accept as true, the facts alleged in the pleading and accord the party making the allegations "the benefit of every possible inference" determining only "whether the facts as alleged fit within any cognizable legal theory." See, J.P. Morgan Securities Inc. V. Vigilant Ins. Co., 21 NY3d 324, 334 (2013); Nonnon v. City of New York, 9 NY3d 825, 827 (2007). The Court is not to decide whether the allegations can ultimately be proven in determining the motion, as the resolution of factual issues is inappropriate on a motion pursuant to CPLR §3211. J.P. Morgan v. Vigilant Ins. Co., supra, 21 NY3d at 334. However, where the allegations consist of factual claims that are flatly contradicted by the documentary evidence, the facts pleaded in the compliant will not be presumed true or accorded favorable inferences. Ullmann v. Norma Kamali, Inc., 207 AD2d 691 (1st Dept. 1994).
Defendant's motion to dismiss the complaint must be granted as plaintiff's action is barred by the doctrine of judicial immunity. It is well settled that individuals serving in judicial capacities as well as those who are delegated judicial or "quasi-judicial" functions are immune from civil suits based on any actions taken in their official capacities. See Mosher-Simons v. County of Allegany, 99 N.Y.2d 214, 220, 783 N.E.2d 509, 753 N.Y.S.2d 444 (2002). This judicial immunity privilege is regularly applied to expert witnesses when such witnesses are appointed by the court. See Bridget M. v. Billick, 36 A.D.3d 489, 490, 826 N.Y.S.2d 568 (1st Dept. 2007) (holding that "a psychiatrist appointed by the court as a neutral forensic evaluator with the consent of the parties' attorneys and the children's Law Guardian in an underlying custody proceeding in Family Court has judicial immunity from suit for malpractice regarding the work he performed"); Finkelstein v. Bodek, 131 A.D.2d 337, 516 N.Y.S.2d 464 (1st Dept. 1987) ("Included within those groups of persons who enjoy immunity for statements uttered in a judicial proceeding are court-appointed experts who are ordered to conduct psychiatric examinations."); Young v. Campbell, 87 A.D.3d 692, 929 N.Y.S.2d 249 (2nd Dept. 2011) (dismissing a negligence/malpractice action against psychologists and social workers who had been appointed to aid courts in divorce and neglect proceedings because "judicial immunity preclude the plaintiff from recovering damages for negligence or malpractice against them"); Colombo v. Schwartz, 15 A.D.3d 522, 789 N.Y.S.2d 744 (2nd Dept. 2005) (finding that psychiatric expert "has judicial immunity from suit regarding the work he performed as a court-appointed psychiatric expert in connection with the plaintiff's spousal support litigation").
Public policy supports the protection afforded a court-appointed expert based on immunity from suit. In certain matters, a court may rely on the opinions of experts to fully and fairly determine the issues raised in litigation. Judicial immunity protects judges in the performance of their judicial functions so as to allow them to exercise independent judgment without the threat of legal reprisal, which is "critical to our judicial system." Ashmore v Lewis, 2012 N.Y. LEXIS 337 (Sup Ct. New York County 2012), citing, Mosher-Simons v County of Allegany, 99 NY2d 214, 219, 783 N.E.2d 509, 753 N.Y.S.2d 444 (2002), quoting Tarter v State of New York, 68 NY2d 511, 518, 503 N.E.2d 84, 510 N.Y.S.2d 528 (1986). "A logical extension of this premise is that 'other neutrally positioned [individuals], regardless of title, who are delegated judicial or quasi-judicial functions should also not be shackled with the fear of civil retribution for their acts.'." Id. citing, Mosher-Simons, 99 NY2d at 220, quoting Tarter, supra.
Here, because Dr. Pierangelo was a court-approved Parent Coordinator, serving a quasi-judicial function, and Judge Bennett relied on his testimony and conclusions in rendering her decision, he is entitled to immunity from suit regarding the work he performed as a court-approved Parent Coordinator. As such, this action must be dismissed as it is barred by the doctrine of judicial immunity.
Plaintiff's assertion that defendant is not entitled to judicial immunity because he was not "court-appointed" as he was hired directly by child's parents and not by the court is without merit and is simply not supported by the record evidence. Similarly, plaintiff's claim that Dr. Pierangelo himself indicated that he was not "assigned as a Parent Coordinator by the court", ignores the documentary evidence that firmly establishes the fact that Dr. Pierangelo acted as the plaintiff's Parent Coordinator for five years, in accordance with Judge Bennett's 2012 order. (Zuccardy Aff. in Opp., Ex. 1; McNamara Aff., Ex. E, p.12).
Indeed, the complaint contains several allegations indicating that plaintiff agreed to the selection of the defendant as the parent coordinator pursuant to court-ordered stipulation. (McNamara Aff., Ex. A, ¶¶29, 35, 36, 37). Moreover, the complaint contains several allegations wherein plaintiff claims that on or about December 2013, defendant coordinated with plaintiff, the child's father, the child's attorney and the child's therapist relative to the child's contact with plaintiff. (McNamara Aff., Ex. A, ¶¶79-81). Plaintiff goes on to allege that beginning in March, 2016 "defendant testified in a proceeding regarding the child, before an Acting Justice of the Supreme Court of the State of New York." (McNamara Aff., Ex. A, ¶82). Finally, plaintiff alleges that defendant, while giving testimony, stated his professional opinions. (McNamara Aff., Ex. A, ¶85).
In addition to the allegations in the complaint, in support of his motion to dismiss, defendant has also submitted the stipulation of the parties dated January 10, 2012 wherein the parties memorialized custody and details related to parental access and the Nassau County Supreme Court so-ordered stipulation between the child's parents setting forth their stipulated agreements and directing the parties to retain a Parent Coordinator. (McNamara Aff., Exs. D and E).
It is clear from the allegations in plaintiff's complaint and the Nassau County Supreme Court's so-ordered stipulation, that although the child's parents hired defendant directly, they were ordered to so by the court presiding over the custody proceeding. Moreover, regardless of who initially chose defendant as the Parent Coordinator in the custody proceeding, it is clear that defendant was acting as a parent coordinator on behalf of the court. Indeed, the court, over plaintiff's objections, relied on defendant's testimony and reports in granting the father's motion to terminate the mother's access to the child and deny the mother's motion for supervised visitation. See, Chen v Daly, 2016 N.Y. Misc. LEXIS 177 (New York County 2016) (where court granted defendants" motion to dismiss complaint against a neutral appraiser whose report the court relied on to determine the value an apartment at issue in a divorce proceeding); Ashmore v Lewis, 2012 N.Y. LEXIS 337 (Sup Ct, New York County 2012) (where the court granted defendant's motion to dismiss relying on the public policy surrounding the doctrine of judicial immunity and noting that "the cases are legion that hold that a court-appointed forensic expert, such as Dr. Cohen Lewis here, is entitled to judicial immunity from suit in connection with the work performed pursuant to court order.").
Plaintiff's attempt to deny that Dr. Pierangelo acted, at all times stated within the complaint, in his quasi-official capacity as a Court-approved Nassau County Parent Coordinator, is belied by the record evidence. Judge Bennett noted Dr. Pierangelo's role as the Parent Coordinator and in her decision credited his conclusion, that "due to the serious pathology of the mother and the likely dangerous and traumatizing effect on the child if visitation [with the mother] was to resume", in granting the father's motion to suspend the mother's parental access to the child. Schonfeld v Saucedo, Sup Ct, Nassau County, February 16, 2018, Bennett, J., Index No. 203312/13, p.22.
Plaintiff's argument that there is no evidence that Dr. Pierangelo participated in Nassau County's Parent Coordination Program is equally unpersuasive and likewise belied by the documentary evidence submitted by defendant in support of his motion. (McNamara Aff., Exs. C; E; K and L). In support of the motion to dismiss, defendant has submitted his Curriculum Vitae which indicates that from "2006-Present: Parenting Coordinator for the Nassau Supreme and Family Court system". (McNamara Aff., Ex. C). Additionally, Dr. Pierangelo testified during the child custody proceeding and was asked questions concerning his involvement as the Parent Coordinator and plaintiff's counsel herself noted his role as the "parenting coordinator" in attempting to convince Judge Bennett that Dr. Pierangelo should not have been allowed to testify as an expert on behalf of the father in the underlying custody proceeding. (McNamara Aff., Ex. K). Finally, the website for the 10th District concerning alternative dispute resolution clearly states; "Nassau County Supreme Court offers several ADR Programs. 1. Nassau County's Matrimonial Center maintains a roster of parenting coordinators, mediators, and neutral evaluators.". (McNamara Aff., Ex. L).
The record evidence establishes that plaintiff was ordered by the Nassau County Supreme Court to agree upon a parent coordinator with the father "to help facilitate communication between them. . .. The selected individual shall serve as the Parenting Coordinator until such time as both parties agree to terminate his or her services, or until the Parenting Coordinator determines, in writing, that he or she cannot or does not need to render services to the parties any more, or until his or her services are terminated pursuant to an Order from a Court of competent jurisdiction after application by either party, on notice to the other party. If the Parenting Coordinator resigns, the parties shall select a new Parenting Coordinator in the same manner as set forth above for the selection of the initial Parenting Coordinator". (McNamara Aff., Ex. E, p. 120-13).
Given the record evidence, there can be no doubt that Dr. Pierangelo was retained in his official capacity as a court-approved Parent Coordinator and as such, he is entitled to judicial immunity and should be able to render services in that role "unhampered by the fear of retaliatory lawsuits." Arteaga v State of New York, 72 NY2d 212, 219(1988) (where the court held that actions of correction employees, in the circumstances presented, were quasi-judicial in nature and deserving of absolute immunity. The court reasoned that in carrying out their duties relating to security and discipline in the difficult and sometimes highly stressful prison environment, correction employees, like other officials with quasi-judicial responsibilities, should not be inhibited because their conduct could be the basis of a damage claim (citations omitted).) Here, defendant has made a prima facie showing of his right to judicial immunity in this suit by establishing that the work he performed in connection with plaintiff's custody proceedings was done in his role as a court-approved Parent Coordinator and all of plaintiff's claims, as alleged in the complaint, arise indisputably from this work.
"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." Arnav Indus. v. Brown. Raysman, Millstein, Felder & Steiner, LLP, 96 N.Y.2d 300, 304 (2001). Dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. (See, generally, Leon v Martinez, 84 NY2d 83, 87-88 [citations omitted]).
Here, the documentary evidence conclusively establishes that Dr. Pierangelo has participated in the Nassau County Parent Coordination program since 2006 and was approved by the court to act as a Parent Coordinator in the underlying custody proceedings. (McNamara Aff., Exs. C, D, E, K, and L). As such, Dr. Pierangelo is afforded judicial immunity for the services rendered to plaintiff in the underlying custody proceeding and the complaint must be dismissed for failure to state a claim. Given the court's conclusion that Dr. Pierangelo is entitled to judicial immunity, it need not address the remaining arguments seeking dismissal of the complaint.
Defendant's request for an award of sanctions against plaintiff is denied as there is no evidence in the record that plaintiff commenced this action to harass or maliciously injure defendant. See, 22 NYCRR §130-1.1(c)(2); Good Old Days Tavern, Inc. v. Zwirn, 261 AD2d 288, 289 (1st Dept. 1999). Accordingly, it is hereby,
ORDERED that the motion of defendant Roger Pierangelo, Sequence No. 001, to dismiss the complaint herein is granted and the complaint is dismissed in its entirety as against said defendant, with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant.
Any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied and this constitutes the decision and order of the Court. 7/24/2018
DATE
/s/ _________
W. FRANC PERRY, J.S.C.