[*1]
Yoshida v Chin
2015 NY Slip Op 51044(U)
Decided on July 17, 2015
Supreme Court, Kings County
Steinhardt, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 17, 2015
Supreme Court, Kings County


Atsushi Yoshida, Plaintiff,

against

Hsueh-Chih Chin, M.D. and NIHON MEDICAL GROUP, P.C., Defendants. HSUEH-CHIH CHIN, M.D. Defendant/Third-Party Plaintiff, KWAN PARK, P.T. Third-Party Defendant.




24149/2008
Marsha L. Steinhardt, J.

Third-party defendant moves pursuant to CPLR §3211(a) (7) for an order dismissing third-party plaintiff's first cause of action sounding in defamation for [*2]failure to state a cause of action and as commenced beyond the statute of limitations. The movant also requests dismissal of the cause of action for contribution claiming that it fails to state a cause of action and seeks imposition of sanctions for frivolous conduct on the part of third party plaintiff. Plaintiff's attorney submits an affirmation in support of third party defendant's motion urging dismissal of the third party complaint in its entirety. Third party plaintiff opposes the motion.



Plaintiff, Atsushi Yoshida, commenced an action against Hsueh-Chi Chin, M.D. and Nihon Medical Group, P.C. by service of a Summons and Complaint on or about August 1, 2008. On December 11, 2014, Dr. Chin commenced the third party action against Kwan Park, P.T. On or about February 27, 2015, Dr. Chin served an Amended Third Party Complaint on Mr. Park.

For purposes of this motion to dismiss, the facts are stated in a light most favorable to the third party plaintiff. The facts pleaded are to be presumed to be true and are to be accorded every favorable inference, although bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration. Gershon v. Goldberg, 30 AD3d 372, 373 (2d Dept. 2006); Christopher-Earl: Strunk v. New York State Bd. of Elections,



126 AD3d 777 (2d Dept.2015).



Plaintiff Atsushi Yoshida's complaint, sounding in medical malpractice, claims that defendant Hsueh-Chih Chin, M.D. used a carpenter's power drill to treat his injured shoulder on August 29, 2006, thereby causing injury. It is undisputed that third party defendant, Kwan Park, a physical therapist employed by the Nihon Medical Group, was present in the examining room at the time treatment was rendered and the events which form the subject matter of plaintiff's complaint allegedly took place. Mr. Park claims Dr. Chin asked him to hold the patient while Dr. Chin applied the drill to his shoulder.



Co-defendants, Dr. Chin and Nihon Medical Group, have a long tortured history. It is Dr. Chin's allegation that on or about June 15, 2000 Dr. James Chow and Dr. James Tachibana formed a corporation for the purpose of operating medical practices in New York, doing business through Nihon Medical Group (Nihon). Five years later, Dr. Chin entered into a partnership agreement with Drs. Chow and Tachibana and, until 2007, operated their practices through Nihon. Third party defendant, Kwan Park, was hired as a physical therapist by Nihon in February 2006. Dr. Chin claims that on December 10, 2007, partners Drs. Chow and Tachibana requested that he leave the office permanently. He further alleges that the attorney representing Mr. Kwan in the third party lawsuit was present during these events. (Said attorney also represents co-defendants Nihon Medical [*3]Group in the main action.) Police responded to the medical office on two separate



occasions on that December date. Eventually the co-defendants parted ways and litigation for an accounting of the dissolved business ensued.



In deposition testimony, Mr. Park avers that on February 26, 2009, after the main action was commenced, he met with Dr. Chow and Dr. Tachibana and was asked about the occurrence involving the plaintiff on August 29, 2006. They requested he sign a statement which recounted the treatment and acts performed upon Mr. Yoshida on that date. The statement notes that he held the patient while Dr. Chin drilled into his shoulder. Mr. Park signed the statement on February 26, 2009, and gave it to a Mr. Kanecko, Dr. Chow's assistant.



It is defendant/third-party plaintiff's position that said statement is defamatory in nature and commenced a third party action on or about December 11, 2014 for defamation, alleging that Mr. Park defamed him by publishing the statement dated February 26, 2009. In an amended complaint dated February 27, 2015, Dr. Chin claims that he was compelled to re-publish the statement on November 21, 2014 when he gave a copy of Mr. Kwan's statement to his expert on the main action. He states that self-publication to the expert was inevitable and was a foreseeable re-publication in order to prepare a defense for trial. Dr. Chin argues that the cause of action for compelled self-republication of the alleged defamatory statement accrued on November 21, 2014, and that the action was timely commenced.



Mr. Park seeks to dismiss the defamation cause of action as untimely. It is his position that the one year Statute of Limitations (see CPLR §215(3)) began to run on February 26, 2009, the date the statement was signed and given to Nihon's office manager. It is axiomatic that a cause of action for defamation accrues at the time the alleged statements are originally uttered. Melious v. Besignano, 125 AD3d 727, 728 (2d Dept. 2015); see, Wilson v. Erra, 94 AD3d 756, 756 (2d Dept. 2012); Gigante v. Arbucci, 34 AD3d 425, 426 (2d Dept. 2006). Here, the time period within which to seek redress for the original statement expired in February 2010. Any claims relating to the original publication are late and must be dismissed.



Mr. Park also seeks to dismiss the claim for compelled self-republication of the defamatory statement for failure to state a cause of action. While Dr. Chin acknowledges that the Court of Appeals has not addressed the question of whether New York State recognizes an action for foreseeable self-defamation, he urges this court to hold that this cause of action is valid and was timely commenced.



To state a claim for defamation, a plaintiff must plead "a false statement, published without privilege or authorization to a third party, constituting fault as [*4]judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se." Salvatore v. Kumar, 45 AD3d 560, 563 (2d Dept. 2007). "The elements of a cause of action [to recover damages] for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se." Martino v. HV News, LLC, 114 AD3d 913, 913-914 (2d Dept. 2014) quoting, Epifani v. Johnson, 65 AD3d 224, 233 (2d Dept. 2009) [internal quotation marks omitted] see, Knutt v Metro Intl., S.A., 91 AD3d 915, 916 (2d Dept. 2012).



The Second Department in Phillip v Sterling Home Care, Inc., 103 AD3d 786, 787 (2d Dept. 2013), held that "New York does not recognize defamation via compelled self- publication." In that case, the plaintiff was fired from her position as a home health aide on the ground that she had stolen property from the defendants' clients. She argued that in seeking new employment she was forced to disclose that her previous employer accused her of theft. This, she argued, was the basis for her cause of action for defamation by compelled self-publication. The Second Department refused to acknowledge the claim and affirmed the lower court's dismissal of the cause of action finding the cause of action invalid in this State. Id. at 787.



Mr. Park argues that the alleged defamatory statement, drafted during the litigation, is absolutely privileged. It is well settled that a cause of action for defamation cannot stand if the communication is privileged. The Second Department in El Jamal v Weil, 116 AD3d 732 (2d Dept. 2014), reiterated the well-established holding that "statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court are accorded an absolute privilege, so long as the statements may be considered in some way "pertinent" to the issue in the proceeding [internal citations omitted]. This privilege, or "immunity" [Toker v Pollak, 44 NY2d 211, 219 (1978)], applies to statements made in or out of court, on or off the record, and regardless of the motive with which they were made [Internal citations omitted]." El Jamal, at 734. Earlier this year, the Court of Appeals in deciding other issues germane to a defamation claim stated that it is well-settled that statements made in the course of litigation are entitled to absolute privilege. Front, Inc. v. Khalil, 24 NY3d 713, 718 (2015)



In Cullin v. Lynch, 113 AD3d 586 (2d Dept. 2014), a case whose facts are impressively akin to the case herein, the plaintiff s defamation claim was for slander and libel. The Court found that as the allegedly slanderous statements were uttered 9 years prior to the commencement of suit, the claim was undoubtedly time [*5]barred and was properly dismissed by the lower court. The same statements were later used in an affidavit published in a probate proceeding and became the basis for the libel claim. In dismissing the cause of action for defamation (libel) for failure to state a cause of action, the Appellate Division held that "(a)s those statements were made by parties or witnesses in a pending judicial proceeding, and were material and pertinent to the objections to probate, they are protected by an absolute privilege [Internal citations omitted]." Id. at 587.



In this case, the February 26, 2009 statement was made by an eyewitness to the occurrence involving the litigation in which Dr. Chin is a defendant. The statement was taken after the original lawsuit had already been commenced and during its pendency. The claimed re-publication on November 21, 2014 does not alter the nature of the statement; indeed it highlights the document's function as pertinent to the litigation of the main action. The document, an alleged eyewitness statement regarding the treatment rendered to the plaintiff, is clearly material, relevant and pertinent to the litigation against Dr. Chin. Although it no doubt may be construed as having a negative impact on the reputation of Dr. Chin, it is, in fact, a witness statement prepared for litigation and an absolute privilege attaches to it. As the Court of Appeals so aptly noted in Martirano v. Frost, "(i)t may be unfortunate that the plaintiff must suffer an attack on his professional integrity without any means of judicial redress. But the possible harm to him as an individual is far outweighed by the need—reflected in the policy underlying the privilege here involved—to encourage parties to litigation, as well as counsel and witnesses, to speak freely in the course of judicial proceedings." Martitano, 25 NY2d 505, 508 (1969). Likewise, referring to a the absolute privilege accorded to statements involved in judicial proceedings, the Second Department stated in Star v. Simonelli that "(t)he rule and its many applications in decisional law, do not seek to justify defamatory language per se, but rather to protect the search for truth which is the heart of any and all judicial proceedings (c)ourts of law serve as sanctuaries of the rights of men, but not, we believe, of their sensibilities, so long as what is said therein bears or may bear some relevance and pertinence to the proceeding." Star, 76 AD2d 861, 862-863 (2d Dept. 1980). As the statement herein, no matter how unpleasant, constitutes a statement made by a witness in a judicial proceeding it cannot form the basis of a lawsuit sounding in defamation.



For the reasons discussed above, the court is constrained to dismiss the cause of action for defamation as having been commenced outside the statute of limitations and for failure to state a cause of action. The dismissal does not overlook the suggestion, by Dr. Chin, that the actions of co-defendants Nihon Medical Group, P.C. by its officers in eliciting the February 26, 2009 statement is



inconsistent with the interest of Nihon, as the group may be liable for the acts of



employee, Mr. Park. It is counterintuitive to obtain a statement from an employee that would implicate the medical group, yet this very action (requesting and receiving the Park statement) was taken by Nihon.



Third party defendant Park also moves to dismiss the claim for contribution arguing that he had no duty of care towards the patient as he did not treat Mr. Yoshida and that he was simply assisting his supervisor, Dr. Chin.



"In determining whether a valid third-party claim for contribution exists, the critical issue is whether the third-party defendant owed a duty to the plaintiff which was breached and which contributed to or aggravated plaintiff's damages. [Rehberger v. Garguilo & Orzechowski, LLP, 118 AD3d 765, 766 (2d Dept. 2014) quoting Rosner v. Paley, 65 NY2d 736, 738 (1985); see Raquet v. Braun, 90 NY2d 177, 183 (1997)]. [T]he remedy may be invoked against concurrent, successive, independent, alternative and even intentional tortfeasors. [Rehberger v. Garguilo & Orzechowski, LLP, at 766, quoting Raquet v. Braun, 90 NY2d at 183." Bivona v. Danna & Associates, P.C., 123 AD3d 956, 959 (2d Dept. 2014). Pursuant to CPLR 1401, "two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them." Edouard v. Ginsberg & Broome, P.C., 229



AD2d 559, 560 (2d Dept.1996) quoting Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Corp., 71 NY2d 599, 602—603 (1988). However, where the plaintiff's injury is such that it is incapable of a reasonable or practicable division or allocation between the tortfeasors, the focus shifts to the relative degree of fault of the multiple tortfeasors and contribution becomes appropriate. Lewis v. Yonkers General Hosp., 174 AD2d 611, 612 (2d Dept.1991); see CPLR §1401; Ravo v. Rogatnick, 70 NY2d 305 (1987); see, also, Cohen v. New York City Health & Hospitals Corp., 293 AD2d 702 (2d Dept. 2002).



Thus, reviewing the facts alleged in the third party complaint, it is the court's opinion that the third party plaintiff's complaint states a cause of action for contribution. In this case, it is conceded that Mr. Park was in the room when the alleged medical malpractice took place on August 29, 2006. Mr. Park's statement establishes that he held steady Mr. Yoshida while Dr. Chin rendered the alleged treatment. There is no doubt that Dr. Chin, as a physician, owed a duty to the patient as did Mr. Park in his capacity as a physical therapist. The left shoulder injury Mr. Yoshida allegedly sustained as a result of the occurrence on August 29, 2006 may be found by a jury to have involved both Dr. Chin and Mr. Park. Under these circumstances, clearly a claim for contribution is stated.



Next, the Court finds that the contribution cause of action was timely



instituted. Pursuant to CPLR §1403, a cause of action for contribution may be asserted in a separate action or by cross-claim, counterclaim or third-party claim in a pending action. The statute of limitations on a claim for indemnity or contribution accrues only when the person seeking indemnity or contribution has paid the underlying claim. Tedesco v. A.P. Green Industries, Inc., 8 NY3d 243, 247 (2007). It is well established that the statute of limitations for contribution, which is based in Contract law, is 6 years. McDermott v. City of New York, 50 NY2d 211 (1980).



Lastly, the request for cost and sanctions is denied.



This constitutes the opinion, decision and order of this court. .



ENTER,



HON. MARSHA L. STEINHARDT

J.S.C.