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.

__________

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.

__________

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 preanswer 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 exwife'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