Opinion
9151 Index 22401/16E
04-23-2019
Patrice MCKENZIE, et al., Plaintiffs–Respondents, v. JACK D. WEILER HOSPITAL, et al., Defendants–Appellants, Montefiore Health System, Inc., et al., Defendants.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for appellants. Morelli & Lassalle, LLP, New City (Doralba Lassalle of counsel), for respondents.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for appellants.
Morelli & Lassalle, LLP, New City (Doralba Lassalle of counsel), for respondents.
Renwick, J.P., Richter, Gesmer, Kern, Singh, JJ.
Order, Supreme Court, Bronx County (Lewis J. Lubell, J.), entered October 11, 2018, which denied defendants-appellants' motion pursuant to CPLR 3012(b) to dismiss the action for failure to timely serve a complaint, unanimously affirmed, without costs.
The motion court exercised its discretion in a provident manner in denying the motion to dismiss (see Hernandez v. Chaparro, 95 A.D.3d 745, 944 N.Y.S.2d 879 [1st Dept. 2012] ). In opposition to appellants' motion, plaintiffs were required to "demonstrate a reasonable excuse for the delay and a meritorious claim" ( Stevens v. Stevens, 165 A.D.2d 780, 781, 564 N.Y.S.2d 47 [1st Dept. 1990] ). Here, plaintiffs offered a reasonable excuse based on their need to receive and review the medical records forming the basis for the medical malpractice and lack of informed consent claims (see Rose v. Our Lady of Mercy Med. Ctr., 268 A.D.2d 225, 226, 700 N.Y.S.2d 467 [1st Dept. 2000] ; Aquilar v. Nassau Health Care Corp., 40 A.D.3d 788, 789, 836 N.Y.S.2d 649 [2d Dept. 2007] ).
As to the merits, plaintiffs offered the medical records of plaintiff Patrice McKenzie, which contain admissions sufficient to establish the potential merits of plaintiffs' action based on the conduct of non-moving defendant Dr. Gary Goldberg for, inter alia, lack of informed consent (see Adams v. Agrawal, 187 A.D.2d 886, 887, 590 N.Y.S.2d 545 [3d Dept. 1992] ; cf. Marcello v. Flecher, 150 A.D.3d 1457, 1459–1460, 55 N.Y.S.3d 488 [3d Dept. 2017] ["there indeed are limited instances in which...the pertinent hospital/medical records...may be tendered in lieu of an affidavit of merit"] ). The records suggest that McKenzie consented to the removal of her fallopian tubes in the event that malignancy was discovered during the exploratory laparoscopy which she was scheduled to undergo; no malignancy was discovered during the procedure; but, defendants nonetheless removed her fallopian tubes bilaterally and, in doing so, caused defects of the small bowel and sigmoid colon.