Albert v. Solimon , 684 N.Y.S.2d 375 ( 1998 )

OPINION OF THE COURT

Boehm, J.

Supreme Court properly granted defendant’s motion to dismiss the complaint for failure to state a cause of action. The complaint alleges that “[p]laintiff * * * and her service dog were shown to an examination room by a nurse, and waited for the doctor.” It is undisputed that plaintiff and her dog were in the examination room when defendant entered. The complaint further alleges that, when defendant entered the examination room, “he began screaming at Plaintiff at the top of his voice, regarding the dog’s presence in his office and examination room.”

Although the use of affidavits in a CPLR 3211 (a) (7) motion to dismiss a complaint has been limited by Rovello v Orofino Realty Co. (40 NY2d 633), affidavits may nevertheless be used under certain circumstances, even without converting the motion to one for summary judgment under CPLR 3212. This is particularly true where the plaintiff submits affidavits in opposing the motion. For example, an affidavit submitted by either the plaintiff or defendant may “establish conclusively that plaintiff has no cause of action” (Rovello v Orofino Realty Co., supra, at 636; see, Marraccini v Bertelsmann Music Group, 221 AD2d 95, 97, lv denied 89 NY2d 809; Matter of Board of Educ. v State Educ. Dept., 116 AD2d 939, 941). Further, plaintiff has raised no objection to the use by defendant of an affidavit and excerpts of his deposition in the affidavit supporting his motion.

In her deposition, excerpts of which were incorporated in plaintiffs affidavit opposing defendant’s motion, plaintiff testified that defendant shouted at them to get out of the examination room and in her affidavit she avers that defendant was screaming and shouting “regarding the dog being in the room” (emphasis added). It is undisputed that plaintiff ran out of the examination room, taking the dog with her, and drove away.

In his deposition, which is useful merely to amplify the occurrence, defendant testified that, when he entered the examination room, he saw plaintiff seated on a chair and he asked “what is this dog doing here?” The dog was in the middle of the examination room with “his mouth and his head on the examination table”. Defendant testified that plaintiff then stood up very quickly and rushed out of the room.

The court properly dismissed the cause of action for negligent infliction of emotional distress. There is no reasonable view of the evidence that defendant’s actions were such as to endanger the physical safety of plaintiff or to cause her physical harm (see, Glendora v Gallicano, 206 AD2d 456), and plaintiffs cause of action does not come within any recognizable exception to the foregoing rule (see, Johnson v State of New York, 37 NY2d 378, 381-382).

The court also properly dismissed the cause of action for intentional infliction of emotional distress because the conduct of defendant, viewed in the light most favorable to plaintiff, is not sufficiently outrageous in character and extreme in degree as to exceed all bounds of decency (see, Freihofer v Hearst Corp., 65 NY2d 135, 143; Murphy v American Home Prods. Corp., 58 NY2d 293, 303).

We conclude that the court also properly dismissed the cause of action alleging violation of Civil Rights Law § 47. Section 47 (1) of the Civil Rights Law provides that “[n]o person shall be denied admittance to and/or the equal use of and enjoyment of any public facility solely because said person is a person with a disability and is accompanied by a guide dog, hearing dog or service dog.” The term “public facility” includes, but is not limited to, “all modes of public and private transportation, all forms of public and private housing accommodations whether permanent or temporary, buildings to which the public is invited or permitted, including those maintained by the state or by any political subdivision thereof, all educational facilities and institutions, including those maintained by the state or by any political subdivision thereof, all places where food is offered for sale, all theatres, including both live playhouses and motion picture establishments and all other places of public accommodations, convenience, resort, entertainment, or business to which the general public or any classification of persons therefrom is normally or customarily invited or permitted” (Civil Rights Law §47 [2] [emphasis added]).

The issue raised in this action is not whether a physician’s office is a “public facility” within the meaning of Civil Rights Law § 47 but, rather, whether a physician’s examination room is a “public facility”. We disagree with the dissent’s conclusion that the complaint can be read to allege “that defendant demanded that the dog leave not only the examination room, but the entire office.” Plaintiff and her dog were not barred from the office. The incident occurred entirely in the examination room and, even if we accept for purposes of this CPLR 3211 motion that defendant’s conduct was rude and obnoxious, such conduct was limited to the dog’s presence in the examination room.

We find persuasive the analysis in Perino v St. Vincent’s Med. Ctr. (132 Misc 2d 20), the only reported decision that discusses Civil Rights Law § 47. There, Supreme Court held that a blind person was not entitled to bring his guide dog into a hospital delivery room during the birth of his child. The court’s rationale was that the delivery room, as well as the labor room and maternity ward, are not public facilities or places where the general public is normally invited or permitted because social custom and practice, as well as reasonable health measures, dictate that they be restricted (see, Perino v St. Vincent’s Med. Ctr., supra, at 21-22). The court noted that, while the hallways and cafeteria or snack bar of a hospital may be considered public places (see, e.g., United States v Medical Socy., 298 F Supp 145, 152; People v Ennis, 45 NYS2d 446, 448), the same may not be said for other portions of the hospital where obstetrical or surgical procedures are carried out (see, Perino v St. Vincent’s Med. Ctr., supra, at 21-22, citing Hopwood v City of Pittsburgh, 152 Pa Super 398, 33 A2d 658, 660). The court stated that dogs are foreign to a delivery room and “the presence of the dog would present an unacceptable danger to the expectant mother and to the physicians and nurses in attendance * * * The restrictions against the guide dog’s presence are designed to prevent any dangers which may be caused thereby” (Perino v St. Vincent’s Med. Ctr., supra, at 23). That same concern is not present in Matter of Cahill v Rosa (89 NY2d 14), on which the dissent places so much reliance.

As the decision in Ferino indicates, a single building may have both a private facility and a public facility under the same roof. While the waiting room in a physician’s office may be regarded as a public place in which the general public is normally invited or permitted to enter, the same may not be said of those areas of a physician’s office where physical examinations are conducted. An examination room is restricted to the patient, the physician and the physician’s staff. Not only are there serious concerns regarding a patient’s privacy but the presence of a dog, even a service dog, in an examination room also raises strong considerations of hygiene and sanitation.

There are considerations of the physician’s safety, as well. Plaintiff went to see defendant to be examined regarding pain in her hips and legs. An orthopedic examination by necessity requires the proximity of the doctor to the patient and the physical movement of a patient’s limbs. Such movements may produce an element of pain and a physical or vocal reaction from the patient. There is an understandable concern regarding the response of a dog to his mistress’s expression of pain or discomfort. The presence of a dog during the examination presents a potential and unacceptable danger to the physician and any nursing staff in attendance. The foregoing concerns are neither “speculative” nor ephemeral and may not be casually dismissed as “specters”, as the dissent does; they are based upon a judgment derived from common human experience (see, Shaw v Tague, 257 NY 193). There are sound policy reasons for the view that plaintiffs right to bring a service dog into a “public facility” was never intended to extend into a physician’s examination room.

The dissent’s reliance on the Executive Law and Matter of Cahill v Rosa (supra) is misplaced. In Cahill, the question presented was whether a private dental office is a “place of public accommodation” within the meaning of the Human Rights Law (Executive Law § 292 [9]; see, Matter of Cahill v Rosa, supra, at 18). The Court of Appeals construed the statute and the definition of “place of public accommodation” to be inclusive enough to protect the right of persons who are HIV positive to be treated by a dentist in his dental office (Matter of Cahill v Rosa, supra, at 21).

By contrast, the question presented here is whether an orthopedic physician’s examination room is a “public facility” within the meaning of Civil Rights Law § 47. We disagree with the dissent that we may look to the definitions in Executive Law § 292 (9) and section 40 of the Civil Rights Law. Had the Legislature intended to apply the definitions found in Civil Rights Law § 40 or Executive Law § 292 (9) in construing Civil Rights Law § 47, it could easily have incorporated them in Civil Rights Law § 47 or made specific reference to the definitions in section 40 of the Civil Rights Law and section 292 (9) of the Executive Law. For example, the Legislature defined the term “disability”, for purposes of construing Civil Rights Law article 4-B, as having the same meaning as that found in Executive Law § 292 (21) (see, Civil Rights Law § 47-b [5]). Inasmuch as Civil Rights Law § 47 (2) contains its own definition of the “public facilities” to which it applies, it is unnecessary to refer to the definitions found in other statutes, as the dissent has done. Further, nothing in the legislative history of section 47 suggests that the definition of the term “public facility” may be found in section 40 of the Civil Rights Law, which prohibits discrimination in “places of public accommodations, resort or amusement”, and, for the same reason, neither should the Executive Law be looked to for the definition. Additionally, the definition of “public facility” in Civil Rights Law § 47 (2) does not include “establishments dealing with goods or services of any kind,” as it does in the Executive Law (Executive Law § 292 [9]). Significantly, the legislative history of Civil Rights Law § 47 does not reveal that the definition of “public facility” was repeatedly expanded as it was in the Executive Law, which made it play such a persuasive role in Matter of Cahill v Rosa (supra).

In our view, the dissent has misapplied Matter of Cahill v Rosa (supra) for the further reason that the Court of Appeals there focused on the denial of health care by dental and medical providers to persons with disabilities solely on the basis of their disability. Plaintiff, unlike the patients in Cahill, has not alleged that she was denied treatment. In fact, she was there for that very purpose, and her headlong exit from the examining room was not directed by the defendant.

Accordingly, the order should be affirmed.