Opinion
Index. No. 500510/2014
01-07-2019
RINAT DRAY, Plaintiff, v. STATEN ISLAND UNIVERSITY HOSPITAL, LEONARD GORELIK, M.D., METROPOLITAN OB-GYN ASSOCIATES, P.C. and JAMES J. DUCEY, M.D., Defendants.
NYSCEF DOC. NO. 256 At Part 80 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, located at 360 Adams Street, Brooklyn, New York, on the 7th day of January, 2019. PRESENT: Hon. Genine D. Edwards Justice, Supreme Court DECISION/ORDER Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
| Papers | Numbered |
|---|---|
| Notice of Motion/Order to Show Cause and Affidavits | 1 |
| Cross Motions and Opposing Affidavits (Affirmations) | 2-3 |
| Reply Affidavits (Affirmations) | 4-6 |
Plaintiff moves by order to show cause, to amend her complaint to add causes of actions for (1) breach of contract, (2) fraud, (3) consumer protection from deceptive acts (Gen. Bus. L. 349 and 350), (4) violation of New York State Human Rights Law (Exec. L. 291); (5) violation of New York City Human Rights Law (Admin. Code 8-107); and (6) violation of New York Discrimination Law 40 (Public Accommodation). Defendants Staten Island University Hospital and Dr. James J. Ducey cross-move to dismiss the proposed causes of action pursuant to CPLR 3211(a)(1) and (a)(7). Defendants Metropolitan OB-GYN Associates, P.C., and Dr. Leonard Gorelik cross-move for an order denying plaintiff's motion to amend the complaint and granting reimbursement of attorney's fees and costs for this motion.
Factual and Procedural History
In 2011, plaintiff was the mother of two children, and pregnant with her third child. Her first two children were delivered via cesarean. Plaintiff wanted her third child to be delivered vaginally. Plaintiff sought an obstetrical practice group that would fulfill her desire to deliver her third child vaginally. Her research led her to Metropolitan OB-GYN and Staten Island University Hospital.
Upon admission into Staten Island University Hospital, plaintiff was given four documents to sign: (1) a consent to admission; (2) a consent to vaginal delivery; (3) an acknowledgement of receipt of the patient's bills of rights; and (4) a consent to cesarean delivery. Plaintiff signed all but the latter.
After plaintiff's admission, defendants, James J. Ducey, M.D. ("Dr. Ducey") and Leonid Gorelik, M.D. ("Dr. Gorelik") (collectively "physician defendants") recommended delivering plaintiff's third child via cesarean. Plaintiff refused. Physician defendants then consulted the hospital's attorney who approved the cesarean delivery. Although the infant was successfully delivered, physician defendants lacerated plaintiff's bladder during the cesarean. Consequently, plaintiff remained in the hospital to receive urological treatment, which included the surgical repair of plaintiff's lacerated bladder.
Plaintiff commenced this action asserting causes of actions sounding in ordinary negligence, medical malpractice, lack of informed consent, punitive damages and violations of the Public Health Law as well as New York Codes, Rules and Regulations.
On or about December 1, 2014, plaintiff obtained a copy of defendant Staten Island University Hospital's policy, which allegedly allowed it to perform the caesarean delivery despite plaintiff's objections.
There has been extensive motion practice, including motions to dismiss and motions for summary judgment as well as appellate review. Notably, litigation in this matter was stayed for a total of twenty months.
During an April 2018 deposition, Nurse Danischewski, a nurse employed by defendant Staten Island University Hospital, testified that she was unaware of the hospital's policy. This testimony prompted plaintiff to make the instant application to amend her complaint, adding the aforementioned causes of action. All defendants opposed the proposed amendments.
Discussion
Application to Amend the Complaint
In the absence of prejudice or surprise to the opposing party, leave to amend a pleading shall be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. See CPLR 3025(b); Freely v. Donnenfeld, 150 A.D.3d 695, 54 N.Y.S.3d 63 (2d Dept. 2017). The legal sufficiency or merit of a pleading will not be examined unless the insufficiency or lack of merit is clear and free from doubt. Sample v. Levada, 8 A.D.3d 465, 779 N.Y.S.2d 96 (2d Dept. 2008); Carrol v. Motola, 109 A.D.3d 629, 970 N.Y.S.2d 820 (2d Dept. 2013). Where medical information, which serves as the basis for the allegation, has been freely available to the defendants since the time of discovery, there can be no real claim of prejudice or surprise. Adams v. Jamaica Hasp., 258 A.D.2d 604, 685 N.Y.S.2d 752 (2d Dept. 1999). Substantial and largely unexplained lateness alone is not a barrier to amendment. Abrahamian v. Tak Chan, 33 A.D.3d 947, 824 N.Y.S.2d 117 (2d Dept. 2006).
Here, after much motion practice, plaintiff wishes to amend her complaint and interpose new causes of action regarding the hospital's policy. Defendants allege that the delay is prejudicial. However, delay alone is not dispositive. See Abrahamian, 33 A.D.3d 947. Additionally, plaintiff maintains that Nurse Danischewski's recent testimony motivated the application for an amendment. Consequently, defendants have failed to make a showing of prejudice or surprise.
Relation Back
Pursuant to CPLR 203(f), claims asserted in an amended complaint are deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading. "Thus, when the nature of a newly asserted cause of action is distinct from the causes of action asserted in the original complaint and requires different factual allegations as to the underlying conduct than were contained in the original complaint, the new claims will not 'relate back' in time to the interposition of the causes of action in original complaint." Calamari v. Panos, 131 A.D.3d 1088, 16 N.Y.S.3d 824 (2d Dept 2015). See Velez v. Springer, 102 A.D.2d 823, 476 N.Y.S.2d 374 (2d Dept. 1984).
The nature of the proposed causes of action are akin to the nature of the original causes of action since their nexus is the cesarean delivery that was performed against plaintiff's will. As such, the new claims relate back in time to the interposition of the original causes of action. Cross-Motion to Dismiss the Proposed Amendment
On a motion to dismiss for failure to state a cause of action, the Court must accept the facts alleged in the complaint as true, according the plaintiff the benefit of every possible favorable inference and determining only whether the facts as alleged fit within any cognizable legal theory. Leon v. Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972 (1994); Melio v. John T. Maher Memorial Hospital, 165 A.D.3d 645, 84 N.Y.S.3d 549 (2d Dept. 2018). The merits of a proposed cause of action will not be examined unless the legal insufficiency or lack of merit is patently clear. See Lucido v. Mancuso, 49 A.D.3d 220, 851 N.Y.S.2d 238 (2d Dept. 2008). Defendants have failed to shoulder their burden regarding the insufficiency of plaintiff's proposed claims.
Reimbursement
Defendants Metropolitan OB-GYN Associates, P.C., and Dr. Leonard Gorelik failed to make a prima facie showing of entitlement to attorney fees since there was no demonstration of a frivolous claim. See Metzger v. Westchester County Medical Center, 141 A.D.2d 512, 529 N.Y.S.2d 711 (2d Dept. 1988); Tomo v. Episcopal Health Services, Inc., 85 A.D.3d 766, 925 N.Y.S.2d 563 (2d Dept. 2011).
Conclusion
Accordingly, plaintiff's application for leave to amend her complaint is granted. Defendants' cross-motions are denied.
This constitutes the decision and order of the court.
ENTER,
/s/_________
J. S. C.