Robert v. v. Bango , 46 N.Y.S.3d 274 ( 2017 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 12, 2017 521383
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ROBERT V.,
Appellant,
v MEMORANDUM AND ORDER
KATHY BANGO et al.,
Respondents.
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Calendar Date: November 22, 2016
Before: Garry, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.
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Robert V., Troy, appellant pro se.
Phelan, Phelan & Danek, LLP, Albany (Ryan A. Perry of
counsel), for Kathy Bango and another, respondents.
O'Connor, O'Connor, Bresee & First, PC, Albany (Steven V.
DeBraccio of counsel), for Jeffrey M. Daly, respondent.
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Rose, J.
Appeal from an order of the Supreme Court (Nolan Jr., J.),
entered March 26, 2015 in Saratoga County, which, among other
things, granted defendants' motions to dismiss the complaint.
Following the psychiatric hospitalization of plaintiff's
child at defendant Four Winds Hospital, a dispute arose between
plaintiff and his ex-wife, the mother of the child, regarding a
psychiatric drug prescribed for the child by defendant Kathy
Bango, one of the child's mental health providers. Plaintiff
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reported to defendant Jeffrey M. Daly, another one of the child's
mental health providers and Bango's supervisor, that the ex-wife
continued to administer the medication to the child despite the
fact that Bango had discontinued the child's treatment with that
medication. When Daly failed to take action against the ex-wife,
plaintiff, pro se, commenced this action against defendants
asserting seven causes of action sounding in, among other things,
medical malpractice committed against him and breach of an
agreement to investigate the matter. Defendants each moved pre-
answer to dismiss the complaint, and plaintiff cross-moved for an
order permitting him to amend the complaint to add a cause of
action for medical malpractice on behalf of the child. In
opposition to plaintiff's motion, defendants proffered a 2014
custody order entered on consent which provides that, although
plaintiff has joint legal custody of the child, the ex-wife has
the sole and final decision-making authority regarding the
child's mental health issues. Supreme Court thereafter granted
defendants' motions and denied plaintiff's cross motion.
Plaintiff now appeals.
We cannot agree with plaintiff's contention that Supreme
Court erred in dismissing his medical malpractice claim. A
review of the complaint establishes that the allegations of
medical malpractice are directed solely to the injury or risk of
injury sustained by the child. The complaint is utterly devoid
of any claim that plaintiff himself suffered an injury that was
proximately caused by treatment provided to him by defendants
(see James v Wormuth, 21 NY3d 540, 545 [2013]). Thus, even
accepting as true plaintiff's allegation that he, as well as the
child, were defendants' patients (see Chanko v American
Broadcasting Cos. Inc., 27 NY3d 46, 52 [2016]), we agree with
Supreme Court that he failed to state a cause of action for
medical malpractice.
Plaintiff also failed to state a cause of action against
defendants for breach of Daly's alleged oral agreement to
investigate the ex-wife's actions and to share the results of
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that investigation with plaintiff, inasmuch as plaintiff's
promise not to pursue legal action against defendants for failing
to conduct such an investigation cannot constitute valid
consideration for Daly's alleged oral promise. While
"[d]iscontinuance of a pending action, execution of a release or
a promise to forego future litigation can constitute valid
consideration" (Wood Realty Trust v Storonske Cooperage Co., 229
AD2d 821, 823 [1996]), plaintiff's claimed consideration here is
nothing more than a promise not to sue for the failure to fulfill
the same promise that he relies upon as forming the basis of the
oral contract – namely, Daly's promise to investigate the ex-
wife's actions. Under these circumstances, we find that
plaintiff's promise to forgo litigation does not constitute valid
consideration and, thus, Supreme Court properly dismissed this
claim (compare Della Rocco v City of Schenectady, 278 AD2d 628,
630 [2000], lv denied 96 NY2d 709 [2001] [the plaintiff's
agreement to forgo litigation challenging the application of an
amendment to General Municipal Law § 207-a constitutes valid
consideration for the defendant's agreement to pay him the
difference between his retirement benefit and salary for life];
Joab Commercial Laundries v Reeder, 159 AD2d 489, 490 [1990] [the
plaintiff's agreement to forgo proceeding upon an order that it
had obtained constitutes valid consideration for the defendant's
stipulation of settlement]).
Finally, Supreme Court did not abuse its discretion in
denying plaintiff's cross motion to amend the complaint to add a
medical malpractice cause of action on behalf of the child.
Although the 2014 custody order sets forth that plaintiff and the
ex-wife share joint legal custody of the child, it also provides
that the ex-wife "shall have sole, final and controlling
decisionmaking responsibilities and power" with respect to the
child's mental health care. A review of plaintiff's proposed
amendment reveals that the gravamen of the additional cause of
action is to directly challenge the ex-wife's mental heath care
decision – an area of responsibility specifically excepted from
plaintiff's joint legal custody. Given the terms of the 2014
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custody order, plaintiff lacks the capacity to bring this claim.
Plaintiff's remaining contentions have been considered and
determined to be without merit.
Garry, J.P., Egan Jr., Clark and Mulvey, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court