Opinion
Index 510057/2015
01-12-2022
KARIMAH DESHONG, LASHEANA GAMBLE and ANGELITA MCDONALD, Plaintiffs), v. LASERKLINIC, LLC, and DAN ACARU, M.D., MORGAN OSTAD (previously named "JOHN DOE"), JOHN DOE 2, JOHN DOE 3 and JOHN DOE 4, Defendant(s).
Unpublished Opinion
DECISION/ORDER
Hon. Bernard J. Graham Supreme Court Justice
Recitation, as required by CPLR 2219(a), of the papers considered on the review of this motion to: discontinue the action as against defendant, Dan Acaru, M.D., amend the caption in accordance therewith and to restore this action to active status.
Papers Numbered
Notice of Motion and Affidavits Annexed....................... 1-2
Order to Show cause and Affidavits Annexed............. __
Answering Affidavits & cross-motion......................... 3
Replying Affidavits...................................................... 4
Exhibits........................;............................................... ___
Other:....... (memo).............................................................. ____
Upon the foregoing cited papers, the Decision/Order on this motion is as follows: Counsel for the plaintiffs, Karimah DeShong ("Ms. DeShong"), LaSheana Gamble ("Ms. Gamble") and Angelita McDonald ("Ms. McDonald") have moved (seq. 3) collectively for an Order to discontinue the action as against defendant, Dan Acaru, M.D. ("Dr. Acaru"), to amend the caption in accordance therewith and restore this matter to active status. Defendants, Laserklinic, LLC ("Laserklinic") and Morgan Ostad ("Ostad") oppose the plaintiffs' motion as they maintain the motion is procedurally defective as it fails to comply with the CPLR; the relief sought in this motion is identical to plaintiffs prior motion (seq. 2) except the relief being sought is a discontinuance rather than a severance; and the plaintiff is in default of the prior Decision/Order of this Court dated June 29, 2020, in that the plaintiff failed to comply with the directive of the Court that an application be made for the appointment of an administrator for the Estate of Dr. Acaru.
Background:
The underlying action was commenced on behalf of the plaintiffs by the filing of a summons and verified complaint dated August 14, 2015, and thereafter by the filing of an amended complaint dated August 18, 2015, with the County Clerk of Kings County.
In said complaint, which contains eight causes of action, it is alleged that each of the plaintiffs became patients of the defendants wherein the defendants undertook to perform surgical procedures, including, but not limited to Smartlipo treatment or treatment to various parts of their body. It is alleged that the defendants were negligent and departed from accepted medical practice in the care and treatment rendered to the plaintiffs in the performance of the surgical Smartlipo procedures; in failing to utilize approved methods; in burning, scarring and deforming their bodies; and in failing to use proper tests and examinations in order to diagnose the condition from which they suffered.
LaSheana Gamble allegedly became a patient on or about December 24, 2012. Angelia McDonald allegedly became a patient on or about January 17, 2013, Karimah DeShong allegedly became a patient on or about January 29, 2013.
On October 16, 2017, counsel for Dr. Acaru in a letter to the Clerk of the Court, requested a stay of this action based upon the death of Dr. Acaru, having maintained that, pursuant to CPLR §1015(a), the death of a party divests the court of jurisdiction and automatically stays the proceedings. The matter was then automatically stayed as a result of the death of Dr. Acaru.
Counsel for Dr. Acaru submitted a copy of a death certificate which indicates that Dr. Acaru passed away on October 2, 2017.
Thereafter, counsel for the plaintiff moved (seq. 2) for an Order to sever the action as against defendant Dr. Acaru to enable the matter to proceed without delay as against the other defendants. Counsel for the plaintiff argued that since there was no estate filing for Dr. Acaru in Surrogate's Court, Nassau County, where he was a resident at the time of his death, they should not be burdened with the obligation to commence proceedings for the appointment of a personal representative for the Estate of Dr. Acaru.
Opposition to the motion to sever was offered by counsel for the defendants, Laserklinic and Ostad, who argued that the motion was procedurally defective as the Court was divested of jurisdiction due to the death of Dr. Acaru and the case should be stayed until the appointment of a personal representative for the Estate of Dr. Acaru. Counsel for these defendants further argued that severance would substantially affect their interests as they have claims for both contribution and indemnity as against Dr. Acaru, and Laserklinic is only vicariously liable for the alleged fault of Dr. Acaru. This Court, in a Decision/Order dated June 29, 2020, denied plaintiffs Motion to sever the action as against Dr. Acaru and directed the plaintiff to apply for the appointment of an administrator. This Court held that severance would not be appropriate where the claims against the defendants involve common factual and legal issues and the interests of judicial economy would be better served by conducting a single trial.
Discussion:
Here, the Court is presented with the issue as to whether the plaintiffs motion to discontinue their medical malpractice action against defendant Dr. Acaru should be granted.
In support of the motion to discontinue plaintiffs' action as against Dr. Acaru, plaintiffs' counsel argues that they do not wish to seek the appointment of an Administrator for Dr. Acaru, who upon information and belief does not have an estate or any assets, nor did he maintain professional liability insurance. Plaintiffs assert that continuing the action as against Dr. Acaru would be a waste of time and financial resources, and further delay the prosecution of the action as against the remaining defendants.
Defendants Laserklinic and Ostad, by their attorneys, oppose plaintiffs' motion to discontinue as against Dr. Acaru, arguing that plaintiffs failed to comply with this Court's Order dated June 29, 2020 by not applying for the appointment of an administrator for Dr. Acaru within sixty (60) days after the entry of the Order.
CPLR §3217(b) requires that an action shall not be discontinued against a party asserting a claim except upon order of the court and upon terms and conditions as the court deems proper. In reviewing the facts of this case, the Court is in agreement with counsel for the plaintiffs, that finds that the plaintiffs should be able to determine which parties they choose to bring suit against and should have the discretion as to which parties to discontinue against.
While the authority of a court to grant or deny an application made to it pursuant to CPLR §3217(b) by a party seeking to voluntarily discontinue litigation is within its sound discretion, ordinarily a party cannot be compelled to litigate, and absent special circumstances discontinuance should be granted. Tucker v Tucker. 55 N.Y.2d 378, 449 N.Y.S.2d 683 [1982]. In the absence of special circumstances, such as prejudice to the substantial rights of other parties to the action, a motion for a voluntary discontinuance should be granted. Citibank v Nagrotsk v. 239 A.D.2d 456, 457, 658 N.Y.S.2d 966 [2d Dept 1997]; Westchester County v Welton Becket Associates. 102 A.D.2d 34; 478 N.Y.S.2d 305 [2d Dept 1994].
In reviewing the facts of this case, there has been no persuasive argument raised by defendants Laserklinic and Ostad's counsel in opposition to the motion, identifying any real prejudice to said defendants by granting the motion to discontinue plaintiffs action as against Dr. Acaru.
Instead, it is plaintiffs decision to move for discontinuance and the only real consequence would be that plaintiff is barred from seeking any restitution from the defendant Dr. Acaru, as that defendant has been released as per GOL §15-303. See Expedite Video Conferencing Services. Inc. v Botello. 67 A.D.3d 961 [2d Dept 2009]; Tucker v Tucker, 55 N.Y.2d at 378.
Conclusion:
The Court has determined that plaintiffs motion to discontinue their action as against defendant Dr. Acaru may be granted. Despite the opposition on behalf of defendants Laserklinic and Ostad, the Court finds no special circumstances or prejudice to said defendants from granting the motion.
Accordingly, the motion by plaintiffs to discontinue the medical malpractice action as against Dr. Acaru, pursuant to CPLR §3217(b), is granted.
In accordance with the above, the caption is amended to read as follows:
KARIMAH DESHONG, LASHEANA GAMBLE and ANGELITA MCDONALD, Plaintiff(s),
-against-
LASERKLTNIC, LLC, MORGAN OSTAD (previously named "JOHN DOE"), JOHN DOE 2, JOHN DOE 3 and JOHN DOE 4, Defendant(s).
This shall constitute the decision and order of this Court.