Friday, March 9, 2018

From Russia With Eczema

An attorney who had sued her former law firm has had dismissal of the case affirmed by the New York Appellate Division for the First Judicial Department. 

The claims are described by the court in a 2015 opinion

 Following the termination of her employment as a senior attorney in defendant's Moscow office, plaintiff commenced this action asserting causes of action for, among other things, sexual harassment, retaliatory discharge, and intentional infliction of emotional distress. She alleges that defendant caused her to suffer "extreme mental and physical anguish" and "severe anxiety," and seeks to recover $15 million for emotional distress damages. Although plaintiff denies that defendant's actions caused any diagnosed psychiatric condition and does not anticipate presenting an expert in support of her emotional distress claims, she testified at her deposition that her emotional distress has included experiencing eczema all over her body, hair pulling, anxiety, depression and suicidal feelings. Under these circumstances, the court providently exercised its discretion in determining that defendant had demonstrated that plaintiff had placed her mental condition "in controversy" by alleging unusually severe emotional distress, so that a mental examination by a psychiatrist is warranted to enable defendant to rebut her emotional distress claims.

She had failed to submit to an independent medical examination justifying dismissal and been sanctioned for posting on social media

Contrary to plaintiff's contention, she failed to comply with a court order that she undergo an independent medical examination (IME order). Plaintiff appealed from the IME order, and this Court affirmed (see Clark v Allen & Overy, LLP, 125 AD3d 497 [1st Dept 2015], lv dismissed 25 NY3d 1015 [2015], cert denied ___ US ___, 136 S Ct 553 [2015]). Nevertheless, plaintiff continued to refuse to schedule or sit for the IME. At a compliance conference held on September 29, 2015, the court ordered plaintiff to undergo an audiotaped IME on November 11, 2015, or face sanctions, including the dismissal of the complaint. On November 11, 2105, plaintiff appeared at the examiner's office. However, she refused to take the microphone to be audiotaped, and she informed the examiner that she would go to the police and charge him with false imprisonment and assault if he proceeded with the examination without her consent. The examiner stopped the examination. Under the circumstances, the court properly dismissed the complaint for noncompliance pursuant to CPLR 3126 (see generally Muboyayi v Quintero, 136 AD3d 497 [1st Dept 2016], lv dismissed in part, denied in part 27 NY3d 1046 [2016]).

The court properly imposed financial sanctions on plaintiff for frivolous conduct pursuant to 22 NYCRR 130-1.1. Defendant submitted evidence that plaintiff violated the court's sealing orders by posting about the case to her social media networks in an effort to "harass or maliciously injure [defendant]" (22 NYCRR 130-1.1[c][2]). Moreover, in her opposition to defendant's motion to strike the note of issue, plaintiff falsely represented that she had not refused to sit for the IME and that discovery had been waived (see 22 NYCRR 130-1[c][3]).

Abovethelaw had reported on the litigation. (Mike Frisch)

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