Opinion
05-26-2015
Douglas SCHOTTENSTEIN, M.D., Plaintiff–Appellant, v. Warren SILVERMAN, M.D., Defendant–Respondent.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, Lake Success (Keith J. Singer of counsel), for appellant. Furman Kornfeld & Brennan, LLP, New York (Tracy S. Katz of counsel), for respondent.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, Lake Success (Keith J. Singer of counsel), for appellant.
Furman Kornfeld & Brennan, LLP, New York (Tracy S. Katz of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, RENWICK, MANZANET–DANIELS, FEINMAN, JJ.
Opinion Order, Supreme Court, New York County (Debra A. James, J.), entered November 5, 2014, which granted defendant's motion to dismiss the complaint, unanimously modified, on the law, to deny the motion as to the cause of action for libel per se, and otherwise affirmed, without costs.
Plaintiff, a physician who treated a workers' compensation claimant, alleges that he was defamed in his profession by a report prepared by defendant, a consultant hired by the workers' compensation insurer to determine whether certain medications and treatment prescribed the claimant were indicated. Plaintiff alleges that defendant exceeded the scope of his assigned task by reporting that the medical records he reviewed indicated possible fraudulent billing and unnecessary treatment rendered, and recommending that the matter be referred to the Office of Professional Misconduct and the Attorney General's Office.
Defendant's communications are not cloaked with absolute immunity since there is no showing that he was engaged in a public function when he published the report (see Workers' Compensation Law § 20 ; Toker v. Pollak, 44 N.Y.2d 211, 219, 405 N.Y.S.2d 1, 376 N.E.2d 163 [1978] ). There were no adversarial proceedings at the time of the report's publication (see Okoli v. Paul Hastings LLP, 117 A.D.3d 539, 985 N.Y.S.2d 556 [1st Dept.2014] ; Nineteen Eighty–Nine, LLC v. Icahn Enters. L.P., 99 A.D.3d 546, 953 N.Y.S.2d 4 [1st Dept.2012], lv. denied 20 N.Y.3d 863, 2013 WL 1235514 [2013] ). Nor are defendant's communications subject to qualified immunity since plaintiff's detailed allegations, accepted as true for purposes of this motion, are “sufficient to potentially establish actual malice” (see Weiss v. Lowenberg, 95 A.D.3d 405, 406, 944 N.Y.S.2d 27 [1st Dept.2012] [internal quotation marks omitted]; Arts4All, Ltd. v. Hancock, 5 A.D.3d 106, 109, 773 N.Y.S.2d 348 [1st Dept.2004] ).
The complaint fails to state a cause of action for intentional infliction of emotional distress, since defendant's report fails “to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” (see Howell v. New York Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993] ).