Opinion
No. 2022-31591 Index No. 100271/2018
05-13-2022
CYNTHIA NEESEMANN, INDIVIDUALLY AND AS THE EXECUTOR OF THE ESTATE OF SAMUEL FRIEDAR, DECEASED, Plaintiff, v. MT. SINAI WEST, MOUNT SINAI HOSPITAL, SELECT SPECIALTY-NORTHEAST NEW JERSEY HOSPITAL, THE PAVILION AT QUEENS FOR REHABILITATION AND NURSING, NEW YORK-PRESBYTERIAN QUEENS, WOODMERE REHABILITATION AND HEALTH CARE CENTER, KINDRED HOSPITAL NEW JERSEY-WAYNE, SOUTH NASSAU COMMUNITIES HOSPITAL, JOHN DOES 1-10, and JANE DOES 1-10 Defendant.
Unpublished Opinion
MOTION DATE 03/14/2022
PRESENT: HON. JOHN J. KELLEY, Justice
DECISION+ ORDER ON MOTION
JOHN J. KELLEY, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 013) 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 141, 142 were read on this motion to/for DISMISS .
In this action to recover damages for medical malpractice and negligence, the defendant Select Specialty Hospital-Northeast New Jersey, Inc. (SSH), moves pursuant to CPLR 3211(a)(8) to dismiss the complaint, with prejudice, insofar as asserted against it for lack of personal long-arm jurisdiction, contending that it does not do business in New York, that it did not transact business in New York within the meaning of CPLR 302, and that considerations of due process militate against permitting it to be sued in New York. The plaintiff opposes the motion. The motion is denied.
On May 25, 2018, SSH moved to dismiss this action on the same ground asserted herein (SEQ 001). On January 9, 2019, the court (Madden, J.) denied the motion without prejudice, and directed the parties to conduct expedited discovery in connection with that issue, explaining that
"plaintiff has sufficiently shown that facts may exist to warrant discovery of the facts as to whether she can establish jurisdiction in this court over SSH and/or Kindred [Healthcare, Inc., a corporation related to SSH]. It is therefore appropriate to direct expedited jurisdictional discovery to resolve jurisdictional issues raised by plaintiff regarding (1) the nature of the relationship between SSH and Kindred and their parent corporations, and, in particular the amount of control exercised by the respective parent corporations over SSH and Kindred, (2) whether the corporate parents' 'affiliation with the State [of New York] are so continuous and systematic as to render [them] essentially at home in the State', and (3) whether SSH and Kindred and/or their parent companies alleged solicitations of business in New York, are sufficient to find that they transacted business in New York such as to confer long arm jurisdiction over them in connection with this action"(citations omitted). The court also implicitly concluded that the two affidavits submitted by SSH officers or employees in support of the motion were insufficient to warrant the granting of the motion. On February 7, 2019, the plaintiff served interrogatories upon SSH in connection with its contacts in New York, as well as Kindred's contacts in New York. On or about June 20, 2019, SSH responded to those interrogatories.
On August 2, 2019, SSH, in effect, renewed it motion to dismiss on the same ground asserted herein, contending that the discovery that it provided confirmed that there was no basis for finding personal jurisdiction over it or its parent company in New York (SEQ 003). By order dated January 21, 2020, the court (Shulman, J.), denied the motion, again without prejudice. The court found that the plaintiff's interrogatories were unrestricted in terms of subject and time, and irrelevant in some instances, while SSH's responses were equivocal, provided nothing new to support its defense of lack of personal longarm jurisdiction, and lacked probative value, as it was merely signed by counsel for SSH, and not an officer, director, member, agent, or employee with personal knowledge of the answers set forth therein. Specifically, the court held that
"[i]n reviewing SSH's responses, it is evident that it has provided nothing new to support its lack of personal jurisdiction defense. This leaves the court in the position of attempting to determine the personal jurisdiction issue with only the
same two sparse client affidavits submitted in support of its prior motion to dismiss (Motion at Exhs. H and I), the contents of which are merely repeated in SSH's interrogatory responses. Justice Madden determined that plaintiff raised issues regarding SSH's connections to New York which warranted discovery. In doing so, she implicitly deemed these affidavits inadequate to establish that this court lacks personal jurisdiction over SSH. Accordingly, this court is unable to address SSH's motion to dismiss, which is denied without prejudice."
Thus, the court directed the plaintiff to serve new, more narrowly tailored interrogatory answers, and directed SSH to provide properly acknowledged, detailed, and unequivocal responses to the interrogatories.
On February 7, 2020, the plaintiff served a new set of interrogatories upon SSH. On January 6, 2022, SSH responded to the plaintiff's interrogatories. On January 19, 2022, SSH made the current motion that, in effect, again seeks leave to renew its prior motions and, upon renewal, to dismiss the complaint insofar as asserted against it. On February 3, 2022, the plaintiff submitted opposition to the motion.
In support of its motion, SSH submits the previous motions and the decisions disposing those motions, the plaintiff's first and second set of interrogatories and its responses, the affidavit of SSH's Interim Chief Executive Officer, Beth Cullum, that had previously beem submitted under Motion Sequences 001 and 003, a progress note from a resident physician at the defendant Mount Sinai Hospital, and a screenshot of a map displaying various NovaCare Rehabilitation centers in what appears to be the New York tri-state area. In opposition, the plaintiff submits the exhibits from the opposition papers that she submitted in response to the motion under Motion Sequence 003, the LinkedIn resume of Carole Kaplan, one of SSH's employees, and an affidavit by the plaintiff previously submitted in connection with Motion Sequence 003.
Renewal is only warranted where the movant presents "new facts not offered on the prior motion that would change the prior determination," or demonstrates that "there has been a change in the law that would change the prior determination" (CPLR 2221[e][2]; see Foley v Roche, 68 A.D.2d 558, 567 [1st Dept 1979]). A movant must also present "a reasonable justification for the failure to present" any such new facts in connection with the prior motion (CPLR 2221[e][3]). "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Joseph v Simmons, 114 A.D.3d 644, 644 [2d Dept 2014], quoting Elder v Elder, 21 A.D.3d 1055, 1055 [2d Dept 2005]). Renewal is not warranted here, since SSH has not offered "new" facts that would change the prior determination. Although the plaintiff served the same set of interrogatories as previously submitted, with minor changes, SSH provided nearly identical responses and virtually the same exhibits as it submitted to the court in support of its preceding motions. Thus, SSH seeks relief based on supporting evidence that, has twice been rejected as insufficient.
The court also notes that several of SSH's responses and objections are evasive. For example, SSH generally objects to the interrogatories because "they seek publicly available information to which Plaintiff and Select Specialty Hospital have equal access." However, even though documents are publicly available, a party in possession of such documents is not excused from obligation to produce them in the course of discovery (see Z.D. v MP Mgt., LLC, 150 A.D.3d 550, 552 [1st Dept 2017]; Matter of Steam Pipe Explosion at 41st St. & Lexington Ave., 127 A.D.3d 554 556 [1st Dept 2015], affd 27 N.Y.3d 985 [2016]; Alfaro v Schwartz, 233 A.D.2d 281, 282 [2d Dept 1996].
In any event, SSH's responses to the second set of interrogatories do not comply with CPLR 3133(b), which, in pertinent part, expressly provides
"Interrogatories shall be answered in writing under oath by the party served, if an individual, or, if the party served is a corporation, a partnership or a sole proprietorship, by an officer, director, member, agent or employee having the information"(emphasis added). Although signed by its CEO, who is also a physician's assistant-certified (PA-C), the responses are not notarized or acknowledged and, hence, have not been answered "under oath." CPLR 2106(a) permits nonparty attorneys, physicians, osteopaths, and dentists to employ affirmations in lieu of affidavits. SSH is a party and, hence, its CEO cannot avail herself of CPLR 2106(a). Moreover, although declarants who have religious objections to taking an oath may also employ affirmations, such affirmations nonetheless must be notarized to have evidentiary value (see Slavenburg Corp. v Opus Apparel, 53 N.Y.2d 799 [1981]; Diaz v Tumbiolo, 111 A.D.3d 877 [2d Dept 2013]; People v Eisenstadt, 48 Misc.3d 56 [App Term, 9th & 10th Jud Dists 2015]; CPLR 2300). SSH's CEO is not claiming a religious objection and, as noted, SSH's responses to the plaintiff's interrogatories are not notarized in any event.
Finally, the law of the case doctrine requires this court to deny SSH's motion. "The law of the case doctrine is a rule of comity and convenience which states that ordinarily a court of coordinate jurisdiction should not disregard an earlier decision on the same question in the same case" (Abe v New York Univ., 139 A.D.3d 416, 416 [1st Dept 2016], quoting Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 A.D.2d 467, 469 [1st Dept 1987]). The doctrine "applies only to issues decided, directly or by implication, at an earlier stage of the action" (Metropolitan Package Store Assn. v Koch, 89 A.D.2d 317, 321-322 [3d Dept 1982]). Here, in disposing of Motion Sequence 003, the court (Shulman, J.) ruled that the plaintiff's interrogatories required tailoring, and that SSH's responses were insufficient in any event, such that the court was unable to address the merits of its motion. Despite SSH's most recent responses to the plaintiff's tailored interrogatories, and contrary to its contention that the issue of personal jurisdiction has been resolved in its favor, another justice already has ruled that the virtually unchanged interrogatory responses on which it continues to rely are insufficient. Hence, the finding that SSH's interrogatory responses are insufficient is the law of the case, this court cannot disregard prior rulings in this regard, and this court remains unable properly to address this motion, let alone grant it.
Accordingly, it is
ORDERED that the motion is denied; and it is further,
ORDERED that the defendant Select Specialty-Northeast New Jersey Hospital shall not make any further motions to dismiss the complaint insofar as asserted against it based on lack of personal longarm jurisdiction without prior written court approval.
This constitutes the decision and order of the court.