Opinion
1053 CA 20-00383
12-23-2020
Joanna TRIPI, Plaintiff-Appellant, v. Frank P. ALABISO, Ph.D., Defendant-Respondent.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JILL L. YONKERS OF COUNSEL), FOR PLAINTIFF-APPELLANT. HURWITZ & FINE, P.C., BUFFALO (ANDREA SCHILLACI OF COUNSEL), FOR DEFENDANT-RESPONDENT.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JILL L. YONKERS OF COUNSEL), FOR PLAINTIFF-APPELLANT.
HURWITZ & FINE, P.C., BUFFALO (ANDREA SCHILLACI OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages under several legal theories, all arising from a psychological evaluation that defendant performed of plaintiff and her former husband for child custody purposes. The psychological evaluation was completed pursuant to a court order and upon the stipulation of the parties. Plaintiff appeals from an order granting defendant's motion to dismiss the complaint. We affirm.
Contrary to plaintiff's contention, Supreme Court properly concluded that plaintiff failed to "establish[ ] that additional discovery would disclose facts ‘essential to justify opposition’ to defendant's motion" ( Bouley v. Bouley , 19 A.D.3d 1049, 1051, 797 N.Y.S.2d 221 [4th Dept. 2005], quoting CPLR 3211 [d] ; see Gillies v. National Fire Ins. Co. of Hartford , 56 A.D.3d 1236, 1238, 867 N.Y.S.2d 295 [4th Dept. 2008], lv denied 12 N.Y.3d 702, 876 N.Y.S.2d 349, 904 N.E.2d 504 [2009] ).
Contrary to plaintiff's further contention, the court properly dismissed the complaint based on the doctrine of judicial immunity. It is well settled that " ‘neutrally positioned government officials, regardless of title, who are delegated judicial or quasi-judicial functions should ... not be shackled with the fear of civil retribution for their acts’ " ( Mosher-Simons v. County of Allegany , 99 N.Y.2d 214, 220, 753 N.Y.S.2d 444, 783 N.E.2d 509 [2002] ). " ‘[T]he common law provide[s] absolute immunity from subsequent damages liability for all persons—governmental or otherwise—who [a]re integral parts of the judicial process’ " ( id. , quoting Briscoe v. LaHue , 460 U.S. 325, 335, 103 S.Ct. 1108, 75 L.Ed.2d 96 [1983] ). We agree with the court here that "defendant has judicial immunity from suit regarding the work he performed as a court-appointed forensic psychiatric expert in connection with ... plaintiff's child custody litigation" ( Hom v. Reubins , 268 A.D.2d 461, 461, 702 N.Y.S.2d 603 [2d Dept. 2000], appeal dismissed 95 N.Y.2d 886, 715 N.Y.S.2d 376, 738 N.E.2d 780 [2000] ; see Bridget M. v. Billick , 36 A.D.3d 489, 490, 826 N.Y.S.2d 568 [1st Dept. 2007] ; Deed v. Condrell , 150 Misc 2d 279, 280-282, 568 N.Y.S.2d 679 [Sup. Ct., Erie County 1991], affd for reasons stated 177 A.D.2d 1055, 579 N.Y.S.2d 930 [4th Dept. 1991] ). Thus, plaintiff's contentions concerning the sufficiency of the allegations with respect to any of the particular causes of action do not require a different result.
We have considered plaintiff's remaining contention and conclude that it does not require modification or reversal of the order.