Opinion
601312/08.
Decided September 16, 2011.
In motion sequence number two, defendant Glen Cove Hospital s/h/a North Shore University Hospital at Glen Cove ("Glen Cove") moves for an order: (1) dismissing plaintiffs' complaint; or, in the alternative; (2) vacating the plaintiffs' Note of Issue and Certificate of Readiness and striking this action from the trial calendar; (3) granting the defendants permission to complete pretrial proceedings, including directing that plaintiffs provide responses to all outstanding demands and discovery notices; (4) striking improper language from the Amended/Supplemental Verified Bill of Particulars dated March 7, 2011, served on Glen Cove Hospital s/h/a North Shore University Hospital at Glen Cove; (5) striking all language in the Amended/Supplemental Verified Bill of Particulars dated March 7, 2011, which alleges that Glen Cove Hospital s/h/a North Shore University Hospital at Glen Cove has vicarious liability for any individuals, including Dr. Gilroy, Dr. Philip DeLuca, Dr. Luigi, Dr. Capobianco, Dr. Schinder, and all physician assistants and staff with the North Shore University Hospital at Glen Cove Group, and any of its agents, servants and/or employees, and precluding plaintiff from introducing any evidence at trial to support a claim or vicarious liability on the part of the hospital for these or any other individual for whom it is claimed that the hospital is vicariously liable, as well as to separately delineate those acts and/or omissions allegedly attributable to each respective individual in compliance with the Preliminary Conference Order of February 9, 2009, and Compliance Conference Order of September 16, 2009; (6) extending the time to file motion(s) for summary judgment until ninety (90) days after plaintiffs serve a proper Bill of Particulars; is determined as hereinafter provided.
In motion sequence number three, defendants, Ingolf Holm-Andersen, M.D., and Ingolf Holm-Andersen, M.D., P.C. ("Dr. Holm-Andersen"), move by Order to Show Cause, for an order: (1) pursuant to CPLR § 3216 dismissing plaintiff's complaint for failure to comply with a prior court order or, in the alternative; (2) precluding the plaintiffs from offering any evidence at the time of trial, pursuant to CPLR § 3126(2), as to any new allegations of negligence alleged in their Amended/Supplemental Bill of Particulars, dated March 7, 2011, which was served untimely in direct violation of several prior court orders; (3) pursuant to CPLR § 3043(c), striking from the plaintiffs' Amended/Supplemental Bill of Particulars, dated March 7, 2011, all new allegations of negligence as against defendants, Ingolf Holm-Andersen, M.D., and Ingolf Holm-Andersen, M.D., P.C., that have improperly been incorporated into plaintiffs' new pleading or, in the alternative; (4) pursuant to 22 NYCRR 202.21(e), striking the above action from the calendar upon the ground that the Certificate of Readiness is incorrect in that all discovery now known to be necessary has not been completed; (5) directing the plaintiffs to pay the costs incurred by defendants, and Ingolf Holm-Andersen, M.D., Ingolf Holm-Andersen, M.D., P.C., for the filing of this application and/or the revisal of defendants, Ingolf Holm-Andersen, M.D., and Ingolf Holm-Andersen, M.D., P.C.'s motion for summary judgment currently pending before this court; and (6) adjourning defendants, and Ingolf Holm-Andersen, M.D., Ingolf Holm-Andersen, M.D., P.C.'s motion for summary judgment until the issues raised in this application have been decided.
Plaintiff commenced this action seeking to recover monetary damages for medical malpractice allegedly committed by defendants beginning on or about March 1, 2006 through and including June 6, 2006. Plaintiff alleges that he sustained complications from defendants' negligent failure to timely diagnose and treat sepsis, septic cholangitis, and inflammation of the gallbladder, as well as negligent performance of a colonoscopy which caused perforation of his intestines, all of which resulted in plaintiff sustaining cholangitis, sepsis, sigmoid enterotomy(ies), and permanent ileostomy.
Facts
On September 6, 2002, plaintiff had been referred to Dr. Holm-Andersen for a routine colonoscopy by his primary physician, Dr. Capobianco. Plaintiff had colon surgery in 1988.
"The result of the colonoscopy dated October 28, 2002 revealed status post carcinoma, the sigmoid colon with anastomosis, possible rectal polyp." (Dr. Holm-Andersen's EBT at p. 19). Thereafter, on January 10, 2006, plaintiff presented himself to Dr. Holm-Andersen. On March 1, 2006, defendant Holm-Andersen performed a colonoscopy on plaintiff. On March 3, 2006, plaintiff presented to Dr. Holm-Andersen. Upon presentation, the plaintiff appeared yellow and determined to be jaundiced. Dr. Holm-Andersen sent him to the emergency room. Plaintiff was confined to North Shore University Hospital from March 3, 2006 through June 6, 2006.
Procedural History
Plaintiffs commenced this action on or about August 29, 2008, by filing the summons and complaint. Issue was joined by service of North Shore University Hospital's and Dr. Holm-Andersen's answer on or about October 2, 2008.
On or about February 3, 2009, plaintiffs served a Verified Bill of Particulars as to defendants North Shore University Hospital and Dr. Holm-Andersen. On or about February 3, 2009, North Shore University Hospital served demand for authorizations upon plaintiffs' attorney. Responses remain outstanding to a number of these demands. A Preliminary Conference was held and an order issued on February 9, 2009. A Compliance Conference was held on September 16, 2009, at which time the undersigned "So Ordered" a Compliance Final Order. On November 5, 2009, the examination-before-trial of Dr. Holm-Andersen was conducted. A Certification Conference was held on October 13, 2010. On or about January 31, 2011, Dr. Holm-Andersen served a motion for summary judgment. On or about March 7, 2011, plaintiffs served an Amended/Supplemental Bill of Particulars on North Shore University Hospital and Dr. Holm-Andersen. On or about March 7, 2011, plaintiffs filed a Note of Issue and Statement of Readiness.
North Shore University Hospital
North Shore University Hospital notes that the Preliminary Conference Order and the Compliance Conference Order provide that plaintiffs were to have served a further Bill of Particulars as to vicarious liability on the part of Glen Cove Hospital s/h/a North Shore University Hospital at Glen Cove, and was to have identified the specific agents, servants, and/or employees for whom the hospital defendant was allegedly liable prior to the Certification Conference. Since the Certification Conference was held on October 13, 2010, a further Bill of Particulars in this respect is long overdue and not in compliance with the two prior court orders. Plaintiffs have, for the first time, alleged that Glen Cove Hospital s/h/a North Shore University Hospital at Glen Cove failed to supervise, and/or control qualified medical personnel, including but not limited to Drs. Gilroy, Philip DeLuca, Luigi Capobianco, and Schinder and all physician's assistants and staff within this North Shore University Hospital at Glen Cove group.
North Shore University Hospital moves to dismiss the complaint pursuant to CPLR § 3126 based upon plaintiffs' failure to comply with the court's orders; to strike objectionable language in the Amended Bill of Particulars; to vacate the Note of Issue and Certificate of Readiness and strike the action from the trial calendar; and to extend its time to file a motion for summary judgment.
In opposition to the motion, plaintiffs' counsel, Dana Heitz, states, inter alia, that "the basis for this supplemental affirmation is plaintiffs' compliance with certain discovery demands set forth in North Shore University Hospital's motion, which was previously impossible due to plaintiffs' unavailability."
On May 4, 2011, plaintiffs provided authorization for the following physicians and/or facilities: Dr. Alyskewycz; Dr. Luigi Capobianco, M.D.; North Shore Infectious Disease Associates; Dr. Klirsfeld; Dr. Bulbin; Dr. Brieff; Dr. Tannenbaum; Dr. Greenspan; and Dr. Pomerantz. Plaintiffs, however, could not identify the remaining care providers.
On May 9, 2011, plaintiffs provided the following documents: updated authorization for CVS; copies of notes prepared by Christine Crispino; a redacted copy of Christine Crispino's calendar for March through July 2006; copies of notes prepared by Christine Crispino during Charles Crispino's hospitalization in 2006 and discharge instructions given to plaintiff. The May 9, 2011 letter also stated that plaintiffs were not in possession of certain items and that other items would not be provided.
Based upon plaintiffs' compliance with the outstanding demands, plaintiffs assert that: a) defendants will not be prejudiced in any way by the case remaining on the trial calendar and the Note of Issue need not be vacated; the portions of North Shore University Hospital's motion seeking to compel outstanding discovery should be denied as moot; the "drastic remedy of striking a pleading" is not warranted; and the hospital's request to extend the time to file a summary judgment motion should be denied.
In response thereto, North Shore University Hospital asserts that plaintiffs' Supplemental Affirmation is procedurally improper and should not be considered by the court, and plaintiffs' partial compliance of providing some outstanding discovery responses does not address the remaining relief requested in defendants' moving papers.
Although plaintiff has provided some authorizations, plaintiffs have failed to provide all of the authorizations requested by defendant hospital, to wit: Dr. Alan Morris, Dr. Castellano and Dr. Crina Vintila. In addition, plaintiffs have failed to provide authorizations for Rite Care Medical Products and the proper authorization for Empire Blue Cross/Blue Shield, as previously requested.
Next, plaintiffs have failed to provide copies of the charts of blood pressure recordings and ostomy bag changes, as well as copies of paperwork and written materials that plaintiff received at the ostomy seminar they attended in September, 2009, on the incorrect ground that these materials are irrelevant. These materials are relevant on the issue of plaintiffs' damages, particularly pain and suffering.
Overall, North Shore University Hospital asserts that it is still without a proper Bill of Particulars which separately identifies each individual for whom the hospital is claimed to be vicariously liable, as well as the alleged negligent acts and/or omissions of each of the aforementioned individuals. Also, the plaintiffs have failed to withdraw any of the improper, vague, objected to language in the Amended/Supplemental Bill of Particulars as set forth above, nor has all the outstanding discovery been provided. Hence, North Shore University Hospital requests an extension of time to serve a summary judgment motion.
Based upon the foregoing, North Shore University Hospital concludes that plaintiffs' failure to comply with prior court orders is willful and contumacious. Therefore, defendant countered that the "drastic remedy of striking a pleading" is warranted and the complaint should be dismissed, or, at least, the plaintiffs precluded from making any claims that the hospital has vicarious liability for any individuals.
Law
In Friedman, Harfenist, Langer Kraut v Rosenthal , 79 AD3d 798 [2d Dept 2010], the court stated as follows:
"The nature and degree of the penalty to be imposed pursuant to CPLR § 3126 rests within the discretion of the Supreme Court ( see Raville v Elnomany , 76 AD3d 520 ; Negro v St. Charles Hosp. Rehabilitation Ctr. , 44 AD3d 727 , 728; 1523 Real Estate, Inc. v East Atl. Props. LLC , 41 AD3d 567 , 568). [W]hen a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is well within the Trial Judge's discretion [to dismiss a pleading]' ( Kihl v Pfeffer, 94 NY2d 118, 122). Strong public policy, however, favors the resolution of cases on the merits ( see Negro v St. Charles Hosp. Rehabilitation Ctr., supra at 728; 1523 Real Estate, Inc. v East Atlantic Properties, LLC, supra at 568; A.F. C. Enters., Inc. v New York City School Constr. Auth. , 33 AD3d 737). Accordingly, the drastic remedy' ( Lomax v Rochdale Vil. Inc. , 76 AD3d 999; see Moray v City of Yonkers , 76 AD3d 618 ) of the striking of a pleading pursuant to CPLR § 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious (see Lomax v Rochdale Vil. Inc., supra at 999; Cobenas v Ginsburg Dev. Cos., LLC , 74 AD3d 1269 ; Xiao Yang Chen v Fischer , 73 AD3d 1167 ; Voutsinas v Voutsinas , 43 AD3d 1156 , 1157). Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failure to comply' ( Savin v Brooklyn Mar. Park Dev. Corp. , 61 AD3d 954 , 954-955 [2d Dept 2009] [internal quotation marks omitted]), or a failure to comply with court-ordered discovery over an extended period of time' ( Prappas v Papadatos , 38 AD3d 871 , 872; see Russell v B B Industries, 309 AD2d 914, 915)."
Under the circumstances, we find that dismissal of the complaint is unwarranted. As to the alternate relief requested, Glen Cove asserts that since plaintiffs did not properly identify certain individuals, as well as their acts and/or omissions, by Certification, this court should preclude plaintiffs from introducing any evidence at trial to support a finding of vicarious liability on the part of the hospital for these or any other individuals. Defendant Glen Cove further asserts that in the event that the court denies the branch of the dismissal motion or preclusion order, this court should direct plaintiff to separately identify each individual for whom it is claimed that the hospital is vicariously liable, as well as separately delineate those acts and/or omissions allegedly attributable to each respective individual, in compliance with the Preliminary Conference Order of February 9, 2009, and the Compliance Conference Order of September 16, 2009.
Next, North Shore University Hospital requests that the court strike the improper language contained in paragraph "4" of the Amended/Supplemental Bill of Particulars.
It has been held that "including but not limited to" language in a Bill of Particulars is improper. Alvarado v New York City Housing Auth., 302 AD2d 264 [1st Dept 2003]. Hence, this "including but not limited to" language should be stricken.
In addition, the courts have also found that the language, "agents, servants, and/or employees," is improper. Such language has been found to be vague and overbroad, making it unacceptable. Defendant is entitled to the identification of the particular agents, servants, and/or employees, as well as the particulars of the claims asserted against those individuals. In addition, the language in plaintiffs' Amended/Supplemental Verified Bill of Particulars at paragraph "4", which states that the hospital failed to supervise, "all physicians assistants and staff within the North Shore University Hospital at Glen Cove group" is also unacceptable in that it is impermissibly vague, all inclusive, and does not apprise the defendant hospital specifically for whom it is claimed the hospital is vicariously liable. Gannotta v Long Island College Hosp., 92 AD2d 930 [2d Dept 1983]; Salander v Central General Hosp., 130 Misc 2d 311 (Supreme Court Nassau County, Special Term, Part 1, 1985); Baston v LaGuardia Hosp., 194 AD2d 705 [2d Dept 1993].
As to the vacatur of the Note of Issue, it has been held that a court may properly vacate a Note of Issue if the Certificate of Readiness contains misstatements or material errors. See Lynch v Vollono , 6 AD3d 505 [2d Dept 2009]; see Savin v Brooklyn Marine Park Development Corp., supra at 955. Where outstanding discovery requests remain and plaintiff files a false Statement of Readiness and Note of Issue indicating that there are no outstanding requests for discovery, striking of the action from the calendar is warranted. Ortiz v Valdescastilla, 98 AD2d 610 [1st Dept 1983]; Maloney v National Cleaning Contractors, 105 AD2d 653 [1st Dept 1984]; H Y Realty Co. v Barron, 121 AD2d 238 [1st Dept 1986]; Adamson v Airweld, Inc., 188 AD2d 575 [2d Dept 1992]; Silverman v Caplin, 194 AD2d 602 [2nd Dept 1993]; and Club Italia, Inc. v Italian Fashion Trading, Inc., 268 AD2d 219 [1st Dept 2000].
The motion to strike the action from the calendar is granted without prejudice to the service and filing of a new Statement of Readiness and Note of Issue. Ortiz v Valdescastilla, supra. This will afford defendants an opportunity to conduct disclosure and move again for summary judgment, unless the parties stipulate otherwise. CPLR §§ 3025(b), 3212(a).
Dr. Holm-Andersen
Dr. Holm-Andersen asserts that plaintiffs have violated three(3) court orders and now sixteen (16) months after the completion of Dr. Holm-Andersen's deposition and over six (6) months after certifying the case as "trial ready," are attempting to allege new theories of negligence against, Holm-Andersen, which is entirely inappropriate. As to defendant Dr. Holm-Andersen, plaintiffs were to supplement their responses to defendant's demands (¶¶ 3 and 4).
Furthermore, plaintiffs' counsel waited until after they were served with Dr. Holm-Andersen's motion for summary judgment, and were provided with all of the evidence submitted in support thereof, before serving their Amended/ Supplemental Verified Bill of Particulars which is highly prejudicial.
The only excuse offered is that the attorney who was previously handling this file left the firm a year after the subject orders.
In opposition to Dr. Holm-Andersen's application, plaintiffs submit that the Bill of Particulars served on March 7, 2011 was timely as the court extended their deadline to file the Note of Issue to March 15, 2011. Therefore, the Amended/Supplemental Bill of Particulars served March 7, 2011 was served prior to the filing of the Note of Issue.
Plaintiffs further argue that pursuant to CPLR § 3043(b), "a party may serve a Supplemental Bill of Particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial. Provided, however, that no new cause of action may be alleged or new injury claimed and that the other party shall upon seven days notice, be entitled to newly exercise any and all rights of discovery but only with respect to such continuing special damages and disabilities." Hence, plaintiffs are entitled to supplement their original Bills of Particulars up to thirty days before trial.
Furthermore, contrary to Dr. Holm-Andersen's selective reference to the provisions of the original Bill of Particulars, there have been no new allegations or injuries set forth in the Amended/Supplemental pleading — rather, plaintiffs have simply amplified the pleadings in accordance with the purpose of a Bill of Particulars. Jones v Lefrance Leasing Ltd. Partnership, 81 AD3d 900 [2nd Dept 2011]. Even if new claims or injuries were alleged, plaintiffs are still entitled to file an Amended Bill of Particulars as a matter of course pursuant to CPLR Rule 3042(b) so those "new" claims would not provide a basis for striking the Amended/Supplemental Bill of Particulars or any language therein.
In analyzing the discretionary penalties that can be imposed by a trial court under CPLR § 3126, it is noteworthy that "wilfull and contumacious conduct" can be inferred from a party's repeated failure to comply with the court-ordered discovery coupled with inadequate explanations for their failure to comply ( see Savin v Brooklyn Marine Park Development Corp., supra), or a failure to comply with court-ordered discovery over an extended period of time. See Prappas v Papadatos, supra.
Plaintiffs' conduct does not amount to "willful and contumacious" conduct that would warrant the drastic penalty of striking a pleading.
As to the branch of the motion which seeks to extend Dr. Holm-Andersen's time to file a motion for summary judgment, plaintiffs argue that Dr. Holm-Andersen was on notice that plaintiff was going to amend the Bill of Particulars because they were considering further non-party depositions. Plaintiffs assert that the defendant Dr. Holm-Anderson should have waited to file a summary judgment motion until the non-party depositions were done.
Plaintiffs further claim there is no prejudice to Dr. Holm-Andersen by the filing of this late Amended Bill of Particulars after the case was certified as Trial Ready five (5) months prior and his deposition had been completed fifteen (15) months before. In response, Dr. Holm-Andersen asserts he has been prejudiced since the inception of the lawsuit since the allegations involve a time frame when he was not treating the plaintiff. His attorneys have tried repeatedly for the past three (3) years to get plaintiffs to narrow the issues and determine what dates of negligence and what specific theories, if any, are being claimed against Dr. Holm-Andersen, to no avail. After all deadlines had passed in which plaintiffs could have served an Amended Bill of Particulars and did not, the defendant moved for summary judgment which is what any defendant would do if they were not involved in the care and treatment of the plaintiff that is the subject of the alleged malpractice.
Plaintiffs' only explanation as to why they failed to comply with both the Preliminary Conference Order and the Compliance Conference Order in this case, is that an attorney, Jennifer Spina, left their office many months after the time in which they were to amend the Bill of Particulars as to Dr. Holm-Andersen.
In view of the foregoing, it is hereby
ORDERED, that the Note of Issue is hereby vacated pending completion of discovery, the improper language in the Bill of Particulars/Amended Bill of Particulars is hereby stricken , the preclusion order is denied , and defendants' time for service of motions for summary judgment is extended. The remaining relief requested is denied .
All matters not decided herein are hereby denied . It is hereby
ORDERED, that Counsel for the parties are hereby ordered to appear before the Court for a Conference on September 26, 2011, at 9:30 a.m.
This constitutes the Decision and Order of the Court.