The opinion
Pollack v Kling
2024 NY Slip Op 34145(U)
November 15, 2024
Supreme Court, New York County
Docket Number: Index No. 151934/2023
Judge: Dakota D. Ramseur
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 151934/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/26/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. DAKOTA D. RAMSEUR PART 34M
Justice
--------------------.X INDEX NO. 151934/2023
MICHAEL POLLACK,
MOTION DATE 05/22/2023
Plaintiff,
MOTION SEQ. NO. 001
- V-
HEIDI E KLING, JOSEPH W NEWIRTH, JOSEPH W.
DECISION + ORDER ON
NEWIRTH, PHO, PSYCHOLOGIST, P.C.,JANE DOE, P.C.
MOTION
Defendant.
---X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 14,
15, 16, 17, 18, 19,20,21, 22,25,26,27,28,29,30,31, 32, 33
were read on this motion to/for DISMISSAL
In May 2023, plaintiff Michael Pollack commenced this action against his former
psychologists Heidi Kling and Joseph Newirth (and his professional service corporation, Joseph
W. Newirth, Ph.D., Psychologist P.C.), asserting causes of action against each for professional
malpractice, lack of informed consent, negligent infliction of emotional distress, breach of
fiduciary duties, and violation of New York Education Law § 6509 (9). In sum and substance,
plaintiff alleges that he sought Kling's professional help after surviving a terrorist attack in
Mumbai in 2008 and that she used her position as his therapist to start an extramarital affair, one
which not only intensified the PTSD and depressive symptoms for which he sought relief but
also caused him to suffer weight loss, sleep disturbances, panic attacks, and sexual dysfunction.
Soon after, in 2011, plaintiff started psychotherapy with Newirth, a professor and clinical
supervisor to Kling, and that, during sessions, he "support[ed], encourag[ed], and enjoy[ed]
hearing" of their affair, explaining that their relationship "was helping [Pollack] tum his
childhood trauma and the terrorist attack into positives in his life." In this motion sequence,
Newirth moves to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a
cause of action. (NYSCEF doc. no. 8, notice of motion.) Plaintiff opposes and cross moves for
sanctions pursuant to 22 NYCRR § 130-1.1 for bringing a frivolous motion. For the following
reasons, both motions are denied.
LEGAL STANDARD
On a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7),
courts afford the pleadings a liberal construction, accept the facts as alleged in the complaint as
true, and give the plaintiff the benefit of every possible favorable inference. (Leon v Martinez, 84
NY2d 83, 87 [1994]; JF Capital Advisors, LLC v Lightstone Group, LLC, 25 NY3d 759, 764
[2015].) A court's inquiry is limited to assessing the legal sufficiency of the plaintiffs pleadings;
accordingly, its only function is to determine whether, from facts alleged and inferences drawn
151934/2023 POLLACK, MICHAEL vs. KLING PHO, HEIDIE ET AL Page 1 of 5
Motion No. 001
1 of 5
[* 1]
INDEX NO. 151934/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/26/2024
therefrom, plaintiff has stated the elements of a cognizable cause of action. (JF Capital Advisors,
25 NY3d at 764; Skill Games, LLC v Brody, l AD3d 247,250 [1st Dept 2003].)
DISCUSSION
Plaintiff's First Cause ofAction for Professional Malpractice
In support of dismissal, Newirth contends that New York Civil Rights Law § 80-a
precludes-as a matter of law-plaintiff from recovering damages he sustained for engaging in
the extramarital affair with Kling. § 80-a provides, in relevant part, as follows:
"The rights of action to recover sums of money as damages for
alienation of affections, criminal conversation, seduction, or breach
of contract to marry are abolished. No act done within this state shall
operate to give rise, either within or without this state, to any such
right of action." (N.Y. Civ. Rights Law§ 80-a.)
As put in his moving papers, Newirth argues that plaintiff's claim is essentially, "but for
Dr. Kling's seduction of plaintiff and Dr. Newirth's failure to prevent the continuance of the
extramarital affair, plaintiff would not have suffered any alienation from his wife and children or
any of the damages he seeks to recover as a result thereof." (NYSCEF doc. no. 9 at 4-5, def.
memo of law.) This position, however, ignores the fact that New York courts admit certain
exceptions to § 80-a's categorical elimination of causes of action premised on extramarital
affairs. One such exception, recognized by the Second Department, exists where, as here, a
patient seeks treatment from a mental health care professional who then begins an affair with
said patient. (See Dupree v Giugliano, 87 AD3d 975, 975 [2d Dept 2011] [holding a jury verdict
in favor of the plaintiff-patient against her therapist was not contrary to the weight of credible
evidence given that her expert testified to the particularly sensitive nature of the patient-therapist
relationship and the likelihood of harm to the patient arising from a sexual relationship], aff'd in
part and rev 'din part on other grounds, 20 NY3d 921 [2012].) In these circumstances, the
Second Department (and later the Court of Appeals) found that § 80-a did not bar the patient's
recovery under a medical malpractice claim specifically because the therapist's conduct in
engaging in a sexual relationship departed from accepted medical practice and caused the patient
further emotional distress. (Id.)
In reply, Newirth contends that, under Dupree, plaintiff may be able to recover against
Kling, who engaged in the affair, but its holding is narrowly prescribed: Dupree does not
sanction plaintiff's attempted recovery against a different therapist for alleged support and
encouragement of the affair. While Newirth's position is undoubtedly correct in that Dupree
does not address liability against a therapist at one remove from the actual affair, he has not
explained the importance of such a distinction. From the Court's perspective, if a plaintiff may
recover against the first therapist for the malpractice of committing to the affair, then there is no
reason why the second therapist, under the same professional obligations and in full knowledge
of the relationship and its potential harm to the patient, cannot be held liable for supporting and
encouraging the patient to engage in the affair. Thus, even though Newirth is not alleged to have
violated specific professional rules prohibiting sexual relationships with patients, the Court finds
151934/2023 POLLACK, MICHAEL vs. KLING PHO, HEIDI E ET AL Page 2 of 5
Motion No. 001
[* 2] 2 of 5
INDEX NO. 151934/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/26/2024
plaintiff has stated a cause of action for professional malpractice based on Newirth's conduct in
condoning and/or actively encouraging Kling's conduct. 1
Plaintiff's Second Cause ofAction for Lack of Informed Consent
Like with plaintiffs first cause of action, Newirth contends that this claim is, as a matter
of law, barred by statute. According to his moving papers, under New York Public Health Law §
2085-d, a claim for lack of informed consent may only be asserted in medical, dental, or
podiatric malpractice cases. Yet, by its terms, Public Health Law §2085-d does not purport to
limit informed consent claims to these types of malpractice cases. Subsection (1) defines the
term "informed consent" to mean ''the failure of the person providing professional treatment or
diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks
and benefits;" subsection (2) limits the action to (a) non-emergency treatment, procedure or
surgery or (b) a diagnostic procedure which involved invasion or disruption of the integrity of
the body; and subsection (3) requires a patient to show that they would not have undergone the
treatment if they had been fully informed. (See Public Health Law§ 2805-d [l], [2], [3].)
Nothing in the language of the statute forecloses an informed consent claim in the context of
psychological/mental health treatment. In fact, the only case law cited by either party-
Laskowitz v CIBA Vision Corp. (215 AD2d 25, 26-27 [2d Dept 1995]-rejected Newirth's
contention that the statute codified all malpractice action based upon lack of informed consent.
Instead, as this Court interpreted above, § 2805-d imposes limitations on the cause of action
against doctors, dentists, and podiatrists. (Id. at 30.) Instead, in Laskowitz, the Second
Department concluded that the Legislature had not intended to abolish or otherwise limit
common-law informed-consent causes of action, sub silentio, against other health care
professionals, who would remain bound by their traditional duties to obtain a patient's informed
consent. (Id. at 31.) Since Newirth does not assert that plaintiff has failed to state a claim based
on her factual allegation, the Court must deny this branch of his motion as well.
Plaintiff's Third Cause ofAction for Negligent Infliction ofEmotional Distress
In this branch of his motion, Newirth asserts that plaintiffs factual allegations do not
meet the "extreme and outrageous conduct" element of a NIED cause of action. However, as
plaintiff correctly points out, the First Department no longer requires a plaintiff to allege such
extreme conduct to adequately plead the cause of action. (See Brown v New York Design Ctr.,
Inc. 215 AD3d 1, 7 [1st Dept 2023].) Accordingly, this branch is also denied.
Plaintiff's Fourth Cause ofAction for Breach of Fiduciary Duties
Newirth has demonstrated that plaintiffs cause of action for breaching fiduciary duties is
improperly duplicative of his malpractice cause of action. (Weil, Gotshal & Manges, LLP v
Fashion Boutique ofShort Hills, Inc., IO AD3d 267,271 [1st Dept 2004] [dismissing a breach of
fiduciary duty claim as duplicative of a professional malpractice claim where both were
premised on the same facts and sought the same relief]; see also Innovative Risk Mgt., Inc. v
1
As discussed infra, one such rule that plaintiff cites is 8 NYCRR 29.12, which provides: "(a) Unprofessional
conduct in the practice of psychology ... shall include (2) in the interpretation of provisions of Section 29 .1 of this
Part ... (i) any physical contact of a sexual nature between psychologist and client."
151934/2023 POLLACK, MICHAEL vs. KLING PHO, HEIDIE ET AL Page 3 of5
Motion No. 001
[* 3] 3 of 5
INDEX NO. 151934/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/26/2024
Morris Duffy Alonso & Faley, 204 AD3d 518,519 [1st Dept 2022]; Mamoon v Dot Net, Inc., 135
AD3d 656, 658 [1st Dept 2016].) In opposition, plaintiff does not argue that the two causes of
action are based on different facts or seek different relief. Instead, he cites EBC L Inc. v
Goldman Sachs & Co. (7 AD3d 418,420 [1st Dept 2004]) for the proposition that "alternative
theories may be advanced in the pleading stage." While true to the extent that a plaintiff may
assert various theories of liability within a claim for malpractice or breach of fiduciary duty,
plaintiff cites no cases that establish he may assert the two causes of action together under the
same factual allegations and for the same relief. Again, where a plaintiff asserts alternative
theories of recovery and seeks different relief based thereon, then the two claims cannot be
considered duplicative and, thus, there would be bona fide dispute as to which remedy he may
seek. (See Wilmoth v Sandor, 259 AD2d 252, 254 [1st Dept 1999], relied upon by EBC L Inc., 7
AD3d at 420.) But that is not the case here. Accordingly, dismissal of this cause of action is
warranted.
Plaintiff's Fifth Cause ofAction Premised on the Violation of Education Law § 6509
Newirth contends that Education Law § 6509 does not contain a private right of action
that plaintiff may recover on. However, as plaintiff argues, his fifth cause of action is for
negligence/professional malpractice per se, for which Kling's violation of §6509 may be used as
evidence to establish liability. Moreover, Education Law§ 6509 is indisputably relevant to
plaintiff's cause of action. The statute confers the authority to create rules of professional
conduct/misconduct on "the board of regents ... or the commissioner in regulations approved by
the board ofregents." In tum, one such rule or regulation is 8 NYCRR 29.12 (entitled "Special
provisions for the profession of psychology"), which defines unprofessional conduct as "(i) any
physical contact of a sexual nature between psychologist and client." (See 8 NYCRR 29.12 [a]
[2] [ii].) In reply, Newirth does not address whether § 6509 may be used to demonstrate a per se
negligence claims.
Plaintiff's Cross-Motion for Sanction
Plaintiff has not established that Newirth's motion constitutes frivolous conduct as
defined by 22 NYCRR § 130-1.1 as the Court has granted one branch of the motion.
Lastly, plaintiff's cross-motion sought to amend the complaint in the event the Court
found its original complaint deficient. Since the Court found the first, second, third, and fifth
causes of action adequately pled in the original and the Amended Compliant does not assert any
new facts or additional relief to address the Court's findings with respect to his fifth cause of
action, the Court grants plaintiff's motion to the amended complaint and deems it properly
served nunc pro tune as of August 1, 2023.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that defendant Joseph Newirth and Joseph W. Newirth, Ph.D., Psychologist
P.C.'s motion to dismiss pursuant to CPLR 3211 (a) (7) is granted to the extent that plaintiff's
fourth cause of action is dismissed but otherwise denied; and it is further
151934/2023 POLLACK, MICHAEL vs. KLING PHO, HEIDIE ET AL Page 4 of 5
Motion No. 001
4 of 5
[* 4]
INDEX NO. 151934/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/26/2024
ORDERED that plaintiff Michael Pollack's motion for sanction is denied; and it is
further
ORDERED that plaintiff shall serve a copy of this order, along with notice of entry, on
all parties within twenty (20) days of entry; and it is further
ORDERED that defendants Joseph Newirth and Joseph W. Newirth, Ph.D., Psychologist
P.C. shall serve an answer to the amended complaint or otherwise appear within twenty (20)
days of receipt of the notice of entry; and it is further
ORDERED that all parties shall appear at 60 Centre Street, Courtroom 341 on January 7,
2025, at 9:30 a.m. for a preliminary conference with the Court.
This constitutes the Decision and Order of the Court.
11/15/2024
DATE
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART 0 OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
151934/2023 POLLACK, MICHAEL vs. KLING PHD, HEIDIE ET AL Page 5 of 5
Motion No. 001
5 of 5
[* 5]