Opinion
No. 805144/2021 MOTION SEQ. NO. 003
09-22-2022
LAUDALINA CASTRO, as Proposed Administrator of the Estate of TIFFANY RIVERA, deceased, Plaintiff, v. CANDICE NIKISHA FRASER, M.D., MELISSA CHU LAM, M.D., SERIN SECKIN, M.D., NIKITA SHAH M.D., CLAUDIA HOLLAND, M.D., JACQUELINE ROZOV, M.D., RAYZE SIMONSON, M.D., BRYAN MAHONEY, M.D., DIMITRI KASSAPIDIS, D.O., MARIBEL SUMERGIDO, R.N., EMILY NICOLE ANTHONISEN, N.P., CHRISTOPHER BEYER, M.D., BARBARA ORLANDO, M.D., CHELSEA KNIGHTEN, M.D., RAYMONDE JEAN, M.D., JAMES SALONIA, M.D., TRINITY MEDICAL CARE NY, PLLC, THE MOUNT SINAI WEST HOSPITAL, MOUNT SINAI HOSPITALS GROUP, INC., and MOUNT SINAI HEALTH SYSTEM, INC., Defendants.
Unpublished Opinion
DECISION + ORDER ON MOTION
HON. JOHN J. KELLEY JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 88, 89, 90, 91, 92, 93, 94, 95, 96 were read on this motion to/for DISMISSAL.
In this action to recover damages for medical malpractice and wrongful death, the defendant Claudia Holland, M.D., moves pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against her based on documentary evidence and for failure to state a cause of action, or, in the alternative, pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against her based on the plaintiff's lack of capacity to prosecute this action. The plaintiff opposes the motion. The motion is granted, and the complaint is dismissed, without prejudice, insofar as asserted against the defendant, based on the plaintiffs lack of capacity.
By order dated March 15, 2022, this court deemed the separate CPLR 3211(a)(3) motions of the defendants Melissa Chu Lam, M.D., Jacqueline Rozov, M.D., Bryan Mahoney, M.D., Dimitri Kassapidis, D.O., Maribel Sumergido, R.N., Emily Nicole Anthonisen, N.P., Christopher Beyer, M.D., James Salonia, M.D., The Mount Sinai West Hospital, Mount Sinai Hospitals Group, Inc., the The Mount Sinai Health System, Inc. (collectively the Mount Sinai defendants), and the defendants Candice Nikisha Fraser, M.D., and Trinity Medical Care NY, PLLC (together the Trinity defendants), to be motions for summary judgment, and thereupon awarded summary judgment dismissing the complaint insofar as asserted against each of them, based on the plaintiffs lack of capacity. Those dismissals were without prejudice. By order dated July 1, 2022, this court awarded summary judgment to the defendants Serin Seckin, M.D., Nikita Shah, M.D., Rayze Simonson, M.D., Chelsea Knighten, M.D., and Raymond Jean, M.D., dismissing the complaint insofar as asserted against each of them, based on the plaintiff's lack of capacity. Those dismissals also were without prejudice.
The complaint must be dismissed insofar as asserted against Holland pursuant to CPLR 3211 (a)(3) for the same reasons as set forth in this court's orders disposing of Motion Sequences 001 and 002, as the plaintiff, who has yet to be appointed as a full administrator of her decedent's estate, but is only a "voluntary administrator" or "proposed administrator," lacks capacity to prosecute the action. As with those dismissals, the dismissal here is without prejudice, in accordance with CPLR 205(a) (see Carrick v Central Gen. Hosp., 51 N.Y.2d at 252; see Rodriguez v River Val. Care Ctr, Inc., 175 A.D.3d at 433; Snodgrass v Professional Radiology, 50 A.D.3d 883, 884-885 [2d Dept 2008]; Bernardez v City of New York, 100 A.D.2d 798, 799-800 [1st Dept 1984]).
The court notes, however, that there is no basis upon which the complaint should be dismissed pursuant to CPLR 3211(a)(1) and (7). CPLR 3211(a) provides, in pertinent part, that
"A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
"(1) a defense is founded upon documentary evidence; or
"(7) the pleading fails to state a cause of action"
Dismissal under CPLR 3211(a)(1) should be granted only where documentary evidence absolutely refutes the factual allegations and conclusively establishes a defense as a matter of law (see 730 J&J LLC v Fillmore Agency, Inc., 303 A.D.2d 486, 486 [2d Dept 2003]). Documentary evidence must be of undisputed authenticity and unambiguous, and its contents must be essentially undeniable (see VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC, 171 A.D.3d 189, 193 [1st Dept 2019]). Where the elements of a cognizable cause of action are set forth within the four corners of the complaint, dismissal under CPLR 3211(a)(7) will be denied "unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it" (Mulvaney v County of Westchester, 2019 NY Slip Op 34768[U], *5, 2019 NY Misc. LEXIS 24692, *5 [Sup Ct, Westchester County, Apr. 23, 2019]; see Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]).
Here, the defendant relies on her own affirmation in an attempt to refute the plaintiffs allegations, and prove that she did not provide treatment to the plaintiffs decedent. However, the affirmation does not qualify as documentary evidence or otherwise warrant dismissal of the complaint (see Fulton v NYU Langone Hosps., 2020 NY Slip Op 30718[U], *4, 2020 NY Misc. LEXIS 1134, *4-5 [Sup Ct, N.Y. County 2020, Mar. 3, 2020] [defendant doctor's own affirmation and affidavit were insufficient for the purpose of granting dismissal under CPLR 3211(a)(1) and (7)]). Holland's affirmation does not absolutely refute the plaintiff allegations but, rather, creates a dispute regarding the facts alleged in the complaint.
Accordingly, it is
ORDERED that the motion is granted to the extent that the complaint is dismissed insofar as asserted against the defendant Claudia Holland, M.D., without prejudice; and it is further, ORDERED that the action is severed against the defendant Claudia Holland, M.D.; and it is further,
ORDERED that the Clerk of the court shall enter judgment dismissing the complaint, without prejudice, insofar as asserted against the defendant Claudia Holland, M.D.
This constitutes the Decision and Order of the court.