EILEEN A. RAKOWER JUDGE.
The following papers, numbered 1 to____were read on this motion for/to
Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ...________1, 2, 3
Answer - Affidavits - Exhibits________4
Cross-Motion: Yes X No
Plaintiff Elena Strujan (“Plaintiff”) commenced this action through the filing of a summons and complaint on or about January 20, 2012. Defendant Dr. William Head, M.D. ("Dr. Head"), interposed an answer, and now moves for an Order pursuant to CPLR §3211(a)(5) to dismiss the Complaint as being time barred or precluded by collateral estoppel and pursuant to CPLR §3211 (a)(7) for failure to state a claim. Plaintiff opposes.
Plaintiffs Complaint alleges the following causes of action against Dr. Head: (1) breach of trust; (2) breach of standard of care; (3) economic loss; (4) intentional S "mental scars and emotional distress"; (5) medical malpractice; (6) unlawful trade practice under the Consumer Protection Procedure Act; (7) defamation; (8) perjury; (9) civil conspiracy; and (10) obstruction of justice. For each cause of action, Plaintiff seeks compensatory damages in excess of $10, 000 and punitive damages. Plaintiff also brought suit against Mitchell Friedman, Esq., Dr. Stanley Pornow, M.D., and Dr. Drushan Kosovich. All defendants except Dr. Head have moved to dismiss all causes of action as against them. (See this Court's August 10, 2012, September 25, 2012, and January 18, 2013 Orders). Dr. Head is the only remaining Defendant.
Plaintiffs Complaint arises out of a Workers' Compensation claim relating to an incident in September 1997 in which plaintiff alleges she was stuck by a HIV positive needle, while working as a nurse technician at New York University Hospital. Plaintiffs Complaint alleges that she "lost the [Workers' Compensation case for disability and economic loss due to the all [sic] defendants [sic] false affirmation under oath." As alleged in the Complaint, Dr. Head was a medical examiner who evaluated Plaintiff on behalf of the insurance carrier, prepared a medical report, and provided testimony at her Worker's Compensation appeal. Plaintiff alleges that Dr. Head provided false testimony at her proceeding based on his erroneous medical report, and as a result, an adverse Workers' Compensation determination was rendered against her.
CPLR §3211 provides, in relevant part:
(a) a party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
(5) the cause of action may not be maintained because of... collateral estoppel, . .., res judicata, ...