Ashmore v. Lewis

112 A.D.3d 508, 976 N.Y.S.2d 389

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 2013
• Status: Published

Opinion

Appeal from order, Supreme Court, New York County (Alice Schlesinger, J.), entered January 27, 2012, which granted defendant’s motion pursuant to CPLR 3211 (a) to dismiss the complaint, deemed an appeal from judgment, same court and Justice, entered February 7, 2012, dismissing the complaint (CPLR 5501 [c]), and, so considered, unanimously affirmed, without costs.

The documentary evidence submitted by defendant, a psychologist appointed by the court as the neutral forensic evalúator with the consent of the parties’ attorneys and the children’s attorney in an underlying custody proceeding in Kings County Supreme Court, established conclusively that judicial immunity precludes plaintiff from recovering damages for negligence or malpractice against her (see Bridget M. v Billick, 36 AD3d 489 [1st Dept 2007]).

While immunity is not absolute where a court-appointed expert acts beyond the scope of her authority (see generally Della Pietra v State of New York, 71 NY2d 792 [1988]), plaintiff failed to establish that defendant acted beyond the scope of her authority, or to show any exception that would warrant lifting the immunity.

We have considered plaintiffs remaining arguments and find them unavailing. Concur — Friedman, J.R, Acosta, Renwick, Manzanet-Daniels and Gische, JJ. [Prior Case History: 2012 NY Slip Op 30189(U).]