Opinion
12–33683
12-19-2017
ESTATE OF Shannan GILBERT BY Sheree GILBERT and Frances Nictora, Co-administratrices and Estate of Mari Gilbert by Sheree Gilbert, Administratrix, Plaintiff(s), v. Charles Peter HACKETT, D.O., a/k/a C. Peter Hackett, D.O., Defendant(s).
PLTF'S ATTORNEY: RAY, MITEV & ASSOCIATES, 122 N. Country Road, P.O. Box 5440, Miller Place, New York 11764 DEFT'S ATTORNEY: O'ROURKE & HANSEN, PLLC, 646 Main Street, Suite 105, Port Jefferson, New York 11777
PLTF'S ATTORNEY: RAY, MITEV & ASSOCIATES, 122 N. Country Road, P.O. Box 5440, Miller Place, New York 11764
DEFT'S ATTORNEY: O'ROURKE & HANSEN, PLLC, 646 Main Street, Suite 105, Port Jefferson, New York 11777
Sanford Neil Berland, J.
Upon the reading and filing of the following papers in this matter: (1) Notice of Cross Motion by defendant, dated May 27, 2016, and supporting papers; (2) Answering Affidavits made by plaintiffs, dated August 30, 2016, and supporting papers; it is,
ORDERED that the motion (incorrectly denominated as a cross motion) made by defendant Charles Peter Hackett, D.O., a/k/a C. Peter Hackett, D.O., seeking summary judgment pursuant to CPLR 3212 (Mot. Seq. # 008) is hereby denied, without prejudice to renewal after all discovery has been completed in this action; and it is further
ORDERED that the branch of the motion (Mot. Seq. # 005) made by plaintiffs seeking, inter alia , to disqualify James O'Rourke, Esq., as counsel for defendant Charles Peter Hackett, D.O., a/k/a C. Peter Hackett, D.O., due to a conflict of interest is hereby denied; and it is further
ORDERED that the remaining branches of Mot. Seq. # 005 are hereby referred to a compliance conference; and it is further
ORDERED that the parties are directed to appear for a compliance conference on Tuesday, January 30, 2018 at 9:30 a.m. in Part 6 of this Court located at One Court Street in Riverhead, New York.
This is an action by the representatives of the estates, respectively, of Shannan Gilbert and of her mother, Mari Gilbert, seeking damages for decedent Shannan Gilbert's pain and suffering and death and for emotional distress and related harms suffered by Mari Gilbert. Shannan Gilbert disappeared in the early morning hours of May 1, 2010. The plaintiffs claim that Shannan's belongings were found approximately 30 yards behind the home of the defendant, Dr. Charles Peter Hackett, in Oak Beach, New York, on Jones Beach Island. More than a year later, Shannan's [badly decomposed] body was discovered approximately half a mile from there, in the heavily thicketed marsh that lies between Oak Beach and Ocean Parkway. During the evening prior to her disappearance, Shannan reportedly had been present at a party at the home of one of Dr. Hackett's Oak Beach neighbors.
The action was originally brought by Mari Gilbert both individually and as the Administratrix of her daughter Shannan's estate. Mari Gilbert was killed on July 23, 2016; subsequently, the subsequently appointed Administratrices of Shannon's estate and the administratrix of Mari Gilbert's estate were substituted as plaintiffs.
Of the Verified Complaint's fifteen alleged causes of action, those seeking damages for wrongful death—the 2nd, 4th, 6th and 8th causes of action—and intentional tort—the 10th through 15th causes of action and portions of the 5th and 6th causes of action—were dismissed on defendant's prior motion for having been brought beyond the applicable statutes of limitations in a decision and order by the Court dated and entered December 10, 2013 (Martin, J.). The action has been the subject of much additional motion practice, with four motions still outstanding. At a conference held on October 31, 2017 before the Court, it was agreed that the Court would address motion sequence # 005, which seeks, among other things, and order disqualifying the defendant's attorney, and # 008, which seeks summary judgment dismissing the action, out of order and render its decision on those motions before addressing the remaining motions. The Court's determination of those motions is as follows:
Disqualification. Plaintiffs seek to disqualify defendant's attorney, James J. O'Rourke, from also representing the defendant's son, Charles Hackett, based upon alleged inconsistencies between Charles' deposition testimony and that of his father. The disqualification of an attorney is a matter that rests within the sound discretion of the court (see Matter of Town of Oyster Bay v. 55 Motor Ave. Co., LLC , 109 AD3d 549, 970 NYS2d 798 [2d Dept 2013] ; Albert Jacobs, LLP v. Parker , 94 AD3d 919, 942 NYS2d 597 [2d Dept 2012] ; Columbus Constr. Co., Inc. v. Petrillo Bldrs. Supply Corp. , 20 AD3d 383, 799 NYS2d 97 [2d Dept 2005] ). A party's right to be represented by counsel of his or her own choosing is a valued right which will not be superseded absent a clear showing that disqualification is warranted (see Mediaceja v. Davidov , 119 AD3d 911, 989 NYS2d 892 [2d Dept 2014] ; Zutler v. Drivershield Corp., 15 AD3d 397, 790 NYS2d 485 [2d Dept 2005] ). The party seeking to disqualify a law firm or an attorney bears the burden on the motion (see Solow v. Grace & Co. , 83 NY2d 303, 610 NYS2d 128 [1994] ; Aryeh v. Aryeh , 14 AD3d 634, 788 NYS2d 622 [2d Dept 2005] ).
This is the relief requested in the plaintiff's notice of motion and in the opening paragraphs of plaintiff's attorney's supporting affirmation. Elsewhere in his affirmation, however, plaintiff's attorney broadens his request to seek to disqualify Mr. O'Rourke from representing Dr. Hackett's wife and daughter, as well Dr. Hackett's son.
Here, plaintiffs have failed to meet their burden of showing that disqualification is warranted based upon a purported conflict of interest (see Olmoz v. Town of Fishkill , 258 AD2d 447; 684 NYS2d 611 [2d Dept 1999] ). Plaintiffs' mere conclusory assertions that there may be a conflict of interest, based solely upon alleged inconsistencies between the testimony of the defendant and that of his non-party family member(s), are insufficient to warrant the disqualification of Mr. O'Rourke. Accordingly, that branch of plaintiffs' motion (Mot. Seq. # 005) is hereby denied.
Summary Judgment. The plaintiffs' remaining causes of action are "survival" claims alleging medical malpractice, negligence, gross negligence, breach of fiduciary duty and fraudulent inducement. The gravamen of all of those claims, as well as those previously dismissed as time barred, is plaintiffs' allegation that prior to her disappearance in the early morning hours of May 1, 2010, Shannan Gilbert came under the control and care of the defendant, a Doctor of Osteopathy licensed to practice medicine in the State of New York. Plaintiffs claim that Dr. Hackett led Shannan—and later, her mother, Mari Gilbert—to believe that he owned and operated a home for "wayward females" out of his Oak Beach house and that he would render "aid" to her there, including medical treatment; that Shannan in fact came under Dr. Hackett's care and control and was administered medication by him; that Shannan was in such a state of confusion and "mental derangement" at that time that she "was incapable of making any informed decisions and of understanding her own or her surrounding circumstances"; and that Dr. Hackett's treatment of Shannan not only was "coerced," but was rendered "negligently, grossly negligently, recklessly and willfully and in reckless disregard of Shannan Gilbert's life and safety." Plaintiffs further claim that, in addition to the obligations stemming from the physician-patient relationship that they allege existed between Dr. Hackett and Shannan Gilbert, or which was imposed upon her by virtue of the control he exercised over Shannan Gilbert and the representations he made to her and to her mother, Dr. Hackett also had a duty to of care to protect Shannan Gilbert and "keep her safe from harm and to call the police and/or 9–1–1 to protect Shannan Gilbert, which [Dr.] Hackett failed and refused to do." Plaintiffs claim that as a result of Dr. Hackett's alleged misrepresentations, tortious acts and breaches of trust and duties, Shannan Gilbert "experienced pain, suffering, anguish, agony, knowledge and fear of her imminent death, and her death." In their general allegations (as well as in the in the specific context of two of their subsequently dismissed causes of action), and perhaps at least partly in anticipation of potential gaps in their proof, plaintiffs also allege that Dr. Hackett "engaged in conduct to conceal and thwart discovery" of his alleged treatment of Shannan Gilbert, including attempting to "thwart" discovery of her body, which, they, claim "frustrated, delayed and blocked" the "determination of her cause of death." Dr. Hackett has denied all the material allegations of the complaint.
The current motion of the defendant seeking summary judgment pursuant to CPLR 3212 is based upon two contentions. First, Dr. Hackett contends that although "at times" he rendered "first aid assistance to neighbors," he has never conducted a medical practice out of his Oak Beach home, has never been or held himself out to be the "owner/operator" of a home for "wayward" women, has never met Shannan Gilbert or had any contact with her, has never administered any aid or medical treatment to her and has never "observed, concealed or moved her body." Second, he contends that notwithstanding the large volume of information available to plaintiffs, including the extensive discovery they have conducted since this action was commenced, plaintiffs cannot establish that he "had anything to do with the decedent Gilbert's death by negligently administering her medication ..." In support of his first contention, he has provided his own affidavit and the affidavits of his wife, Barbara Hackett and of his two adult children, each of whom avers, inter alia , that their home was not operated as a home for wayward women and that Shannan Gilbert was not present there at any time in the period leading up to her reported disappearance or in the days that followed. In support of his second contention, he provides the transcript of the May 28, 2014 deposition of Mari Gilbert, which, he asserts, further establishes that the plaintiffs are without cognizable evidence to support their allegations of his involvement in Shannan's alleged treatment and responsibility for her death. On those bases, he argues that he is entitled to summary judgment dismissing the remaining causes of action of the complaint.
Although the opening portions of Dr. Hackett's attorney's supporting affirmation seem to suggest that the defendant's motion for summary judgment is directed at the complaint's previously dismissed wrongful death causes of action, his arguments are clearly directed at the remaining causes of action, the prayer for relief explicitly requests that "the complaint be dismissed in its entirety," and it does not appear that plaintiffs' counsel, whose opposing papers are ample, was misled as to the breadth of the relief sought by the defendant or prejudiced in his response.
Plaintiffs oppose the motion on the grounds that much of the referenced deposition testimony of Mari Gilbert is misstated in defendant's motion papers and that her testimony, along with a good deal of other evidentiary materials, actually demonstrates that there are indeed triable issues of fact that render summary judgment inappropriate. Thus, in addition to providing the transcript of an undertaking to rectify the asserted misstatements by defendant of Mari Gilbert's deposition testimony, plaintiffs submit, inter alia , Ms. Gilbert's prior affidavit, made on March 28, 2013, recounting two telephone calls she received—one on May 3, 2010, two days after her daughter Shannan disappeared, the other several days later, on May 6, 2010—from a man who identified himself as Dr. Charles Hackett and who, among other things, told her that he operated a halfway house for wayward girls, that Shannan had been in his house on May 1, 2010, and that he had tried to help her and had treated her but she had left with her driver and he was worried about her disappearance; telephone records showing that calls were placed from Dr. Hackett's cellphone on May 3, 2010 and from his home phone on May 6 to Mari Gilbert's cellphone, and on the latter date from Dr. Hackett's home phone to Shannan's sister Sheree's cellphone; and a miscellany of affidavits and signed statements made by several of Dr. Hackett's Oak Beach neighbors who claim either to have been told by other neighbors that Shannan Gilbert was present at Dr. Hackett's home or was given medication by him the night of her disappearance or reporting, at first or second hand, statements made by Dr. Hackett admitting that he had done so, including one individual who claims he overheard, from his car as he drove past the Hackett residence, Dr. Hackett flailing against the siding of the house and "whaling" [sic] to his wife that "he couldn't believe the situation he had put the family in" and that "his intention was to help SG—not to kill her." There is also the affidavit of an attorney recounting a conversation he had with a Jersey City, New Jersey police detective who, according to the affiant, told him that Dr. Hackett had called him "within a week" after Shannan Gilbert went missing and told him that he operated a home for wayward girls.
On a motion for summary judgment the movant bears the initial burden and must tender evidence sufficient to eliminate all material issues of fact ( Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 487 NYS2d 316 [1985] ). Once the movant meets this burden, the burden then shifts to the opposing party to demonstrate that there are material issues of fact; mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (see Zuckerman v. City of New York , 49 NY2d 557, 427 NYS2d 595 [1980] ; Perez v. Grace Episcopal Church , 6 AD3d 596, 774 NYS2d 785 [2004] ). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v. Barreto , 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001] ; O'Neill v. Town of Fishkill , 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987] ).
As noted above, the plaintiffs' remaining claims are survival claims seeking damages for Shannan Gilbert's pain and suffering up to the time of her death. Although a variety of tort theories, including medical malpractice, negligence and fraudulent inducement are alleged, each is rooted, to varying extents, in plaintiffs' allegation that Shannan came under Dr. Hackett's care, or control, and that his actions, or inaction, led to her injuries. Thus, to prevail ultimately in this action, plaintiffs will have to sustain their burden of proof with respect to each of the elements of at least one of the causes of action they have alleged, including, no matter what the theory, proximate cause. At this juncture, however, in the face of Dr. Hackett's categorical denial of any contact with Shannan Gilbert whatsoever, much less of having exercised any control over her or of having rendered any treatment to her, supported by his own sworn statements and those of his wife and children, which is sufficient to establish a prima facie entitlement on his part to summary judgment, plaintiffs need only show that there are material issues of fact that prevent summary disposition of their claims. Plaintiffs' opposing submissions, including, in particular, the deposition testimony of Mari Gilbert, the affidavit of Bruce Andersen and the statement of Joseph C. Scalise —each of whom represents that Dr. Hackett either stated directly or, in the case of Mr. Scalise, within his hearing, that he had brought Shannan Gilbert into his home and treated her with medication prior to her disappearance on May 1, 2010—are plainly sufficient to raise triable issues of fact with respect to Dr. Hackett's first contention—that he had no contact with Shannan Gilbert, never had her in his home and never treated her.
Although plaintiffs' counsel describes as an "affidavit" the handwritten document bearing the date July 24, 2016 and signed by Mr. Scalise before a notary and a witness on July 24, 2016 and bearing that same date, there is no indication that Mr. Scalise was under oath or otherwise sworn at or before the time he signed the paper.
Although plaintiffs' have raised triable issues with respect to the defendant's first contention, the sufficiency of their opposing submissions with respect to the defendant's second contention—that plaintiffs cannot show either that Dr. Hackett's alleged conduct or inaction violated any applicable standard of care or that anything he did or did not do was a proximate cause of Shannan Gilbert's death or of any injuries sustained by her—however, presents a much closer question. Plaintiffs concede that they have "no first-hand knowledge of Shannan Gilbert's death," and are relying on what Mari Gilbert claimed Dr. Hackett had told her and information provided by other "witnesses." Neither Dr. Hackett's alleged statements to Mari Gilbert nor the information provided by any of the individuals they cite, however, shows demonstrably culpable conduct on the part of Dr. Hackett in connection with his alleged contact with and treatment of Shannan Gilbert or a sufficiently causal connection between such alleged contact and treatment and Shannan Gilbert's injuries and death. Plaintiffs offer a number of theoretical scenarios to counter the defendant's second contention—in particular, that Dr. Hackett took Shannan into his home and, without following proper medical procedures—such as notifying the "proper authorities, summoning an ambulance"—"imprudently administered medication(s) to her," then, when she became hysterical, let her wander into the marsh where, disoriented, she became lost and—perhaps after falling, hitting her head and suffering intra-cranial bleeding—she suffered the effects of exposure and perished, an outcome that could even then have been averted had Dr. Hackett prompted a more immediate and better directed search for Shannan and not withheld his knowledge of her likely whereabouts. At this juncture, however, that scenario, as well as the others offered by plaintiffs, depend on chains of inference bordering on speculation, especially because as a result of the lengthy delay in finding Shannan's remains, the precise cause of her death has not been determined.
It should be noted that although plaintiffs have asserted claims alleging medical malpractice against Dr. Hackett, it does not appear that their complaint was accompanied by the certificate required by CPLR 3012–a nor do their current papers include any affidavit, affirmation or other statement from any appropriately credentialed individual attesting that Dr. Hackett's alleged treatment of Shannan Gilbert departed from the applicable professional standard of care.
In recognition of their current difficulties in proof, plaintiffs, citing the Court of Appeals' decision in Noseworthy v. City of New York , 298 NY 76 [1948], and its progeny, ask the court to apply a relaxed standard of proof to their claims and to "give more weight to circumstantial evidence." In Noseworthy , the Court of Appeals held that it was an error for the trial court, in an action in which plaintiff's decedent had been struck and killed by a subway train and the train's motorman was the only eyewitness to the accident, to refuse to instruct the jury in a " ‘death case such as this, that the plaintiff is not held to the high degree of proof required in a case where the injured person may take the stand and give his version of the happening of the accident.’ " [ 298 NY at 80 ] Noting, approvingly, the trend of recent cases to expand the relaxation of the plaintiff's burden beyond the issue of contributory negligence and to the full elements of the plaintiff's cause of action itself, the Court, quoting from its earlier decision in Griffen v. Manice, 166 NY 188 [1901], explained:
We think that is sound and right. It is based on the ‘consideration’ mentioned in Griffen v. Manice (166 NY 188 , 193, 194, 59 N.E. 925, 926, 52 L.R.A. 922, 82 Am.St.Rep. 630 ) ‘that where the management and control of the thing which has produced the injury is exclusively vested in the defendant, it is within his power to produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present.’ Griffin v. Manice (supra) goes on to say ( 166 NY at page 194, 59 N.E. at page 926 ) that it is a general rule of evidence, applicable to every sort of case, ‘that where the defendant has knowledge of a fact but slight evidence is requisite to shift on him the burden of explanation.’
Noseworthy v. City of New York , supra , 298 NY at 80–81. See also Verdino v. Hayes , 10 AD2d 978 [2d Dept 1960].
The analogy to the Noseworthy line of cases is less than perfect here, particularly on the current state of the record—among other things, whether or not Dr. Hackett was an eyewitness to the events leading to Shannan Gilbert's disappearance and death is itself a question of fact. And although a Noseworthy -like relaxation of the burden of proof has been applied where there is no surviving eyewitness to the event, see, e.g., Pontello v. County of Onondaga , 94 AD2d 427 [4th Dept 1983], holding that ("[T]here is a less stringent evidentiary standard applied in wrongful death cases, particularly where there is no eyewitness to the accident," citing Brady v. City of New York , 39 AD2d 600 [2d Dept 1972] ); see also Wragge v. Lizza Asphalt Constr. Co., 17 NY2d 313 [1966], it is still incumbent upon plaintiffs to proffer sufficient evidence, circumstantial or otherwise, to take their claim that Dr. Hackett engaged in tortious conduct that was a proximate cause of actionable injury to Shannan Gilbert from the realm of insufficient speculation to reasonable inference. Again, the question of whether plaintiffs can do so is, on the current record, a close one. Given, however, that discovery, including the depositions of various Oak Beach residents to whom knowledge potentially relevant to the parties' claims and defenses in this action is attributed in the submitted statements of other residents, is yet to be completed and has been stayed as a result of the filing of defendant's motion for summary judgment, see CPLR 3214 [b], the appropriate course is to deny the motion without prejudice to renewal after all remaining discovery has been completed.
Accordingly, defendant's motion for summary judgment in his favor, dismissing the remaining causes of action asserted against him, is denied without prejudice to renewal after the completion of all discovery.
The parties of reminded of the aforementioned compliance conference of January 30, 2018 at 9:30 a.m. in Part 6 of this Court.