Opinion
Index No. 400564/2013
06-30-2023
JANE WARD, Plaintiff, v. THE CITY OF NEW YORK, THE NEW YORK CITY HEALTH AND HOSPITAL CORPORATION, BELLEVUE HOSPITAL CENTER, CARLINE DREWES-PESSEL, M.D., MING TSAI, M.D., JUDITA B. BAUTISTA, M.D., MARIE WERNER, M.D., ALLISON WEBB, M.D., DEBORAH B. DYSON, RPA, and John Doe and Jane Doe 1 through 6 other unknown and unnamed defendants, Defendants.
Unpublished Opinion
MOTION DATE: 2/22/2023, 02/20/2023
PRESENT: HON. ER1KA M. EDWARDS, Justice
DECISION+ ORDER ON MOTION
ERIKA M. EDWARDS, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 008) 24, 25, 26, 27, 28, 29, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 50, 51, 52, 53, 54, 55 (Motion 009) 30, 31, 32, 33, 34, 35, 36, 37, 38, 49, 56, 57, 58, 59 were read on this motion to/for STRIKE ANSWER/PRECLUDE
Upon the foregoing documents, the court denies Plaintiff Jane Ward's ("Plaintiff) motion to strike Defendants The City of New York's ("City"), The New York City Health and Hospital Corporation's and Bellevue Hospital Center's (collectively "NYCHHC") Answer, filed under motion sequence 008, and Plainliff s motion to strike Defendants NYCHHC's Answer and/or to preclude NYCHHC from testifying or presenting evidence at trial, filed under motion sequence 009.
This matter involves Plaintiffs allegations of medical malpractice for Defendants' alleged negligence in their care and treatment of Plaintiff involving Plaintiffs total vaginal hysterectomy and cystoscopy for menorrhagia and symptomatic uterus fibroids performed by Dr. Judita Bautista at Bellevue Hospital Center on May 25, 2011.
Plaintiff now moves under motion sequence 008 for an order striking NYCHHCs Answer for NYCHHCs alleged violation of the So-Ordered Stipulation of Discontinuance, dated October 2,2013, as to Deborah B. Dyson, RPA ("RPA Dyson"), vacating said Stipulation of Discontinuance and issuing a default judgment against RPA Dyson, and for costs.
Plaintiff now moves under motion sequence 009 for an order striking NYCHHCs Answer and/or precluding it from testifying and presenting evidence at trial for its failure to comply with the Stipulation of Discontinuance, dated February 12, 2013, as to Defendants Caroline Drewes-Pessel, M.D. (Dr. Drewes-Pressel"), Marie Werner, M.D. ("Dr. Werner") and Allison Webb, M.D. ("Dr. Webb"), by refusing to produce them for a deposition, or in the alternative, compelling NYCHHC to produce these witnesses for depositions and costs.
Plaintiff argues in substance that Plaintiff entered into a So Ordered conditional Stipulation of Discontinuance, dated October 2, 2013, on the conditions that Plaintiff agreed to withdraw her default judgment against RPA Dyson and discontinue the action against RPA Dyson in exchange for NYCHHCs agreement to take responsibility for the acts and/or omissions of RPA Dyson and that RPA Dyson appear for a deposition. Plaintiff further argues that NYCHHC has refused to produce RPA Dyson for a deposition in violation of the agreement.
Plaintiff further argues that in the Stipulation, dated February 12, 2013, while the action was still pending in Kings County, Plaintiff agreed to discontinue the action against Drs. Drewes-Pessel, Warner and Webb on the condition that NYCHHCs agreement that it will be responsible for the acts and omissions of its employees, servants and agents occurring during the course of their employment, including those acts and omissions involving these three doctors. Plaintiff further argues in substance that NYCHHC refused to produce the doctors for depositions in willful violations of the discovery rules and Stipulation.
NYCHHC opposes both motions and argues in substance that Plaintiff failed to demonstrate good faith efforts to resolve the discovery dispute as required by the CPLR and that since the witnesses are no longer employed by NYCHHC, NYCHHC is only obligated to provide Plaintiff with their last known addresses on file, NYCHHC further argues that Plaintiff repeatedly ignored their timely, substantive responses to her request to depose the witnesses and that it has provided Plaintiff with their last known addresses numerous time. Therefore, NYCHHC argues that it has fulfilled its obligations. Additionally, NYCHHC argues that it has taken the additional steps of attempting to contact the witnesses by certified mail and telephone without success.
Additionally, NYCHHC argues in substance that Plaintiff failed to demonstrate that the depositions of the non-party witnesses are necessary. Also, it argues that it has not violated any court order or agreement.
Here, the court denies Plaintiffs motions. The court agrees with NYCHHC and finds that since the witnesses are no longer employed by NYCHHC, NYCHHC has fulfilled its obligations under the CPLR by providing Plaintiff with the witnesses' last known addresses on file. Additionally, NYCHHC adequately responded to Plaintiffs requests to take the witnesses' depositions and it went above and beyond its obligations by attempting to contact the witnesses by letter and telephone. NYCHHC is not obligated to take any further action to compel the witnesses to appear for depositions.
Additionally, the court finds that NYCHHC did not violate any of the terms of the Stipulations and that Plaintiff has not demonstrated her entitlement to any of the relief requested in either motion. The court is not persuaded by Plaintiffs arguments to the contrary.
The court has considered any additional arguments raised by the parties that were not specifically addressed herein and the court denies ail additional requests for relief not specifically granted herein.
As such, it is hereby
ORDERED that the court denies Plaintiff Jane Ward's motions filed under motion sequences 008 and 009, without costs to any party.
This constitutes the Decision and Order of the court.