Opinion
7262/09.
March 21, 2011.
The following papers have been read on this motion:
Papers Numbered Notice of Motion (Seq. No. 04), Affirmation and Exhibits 1 Notice of Cross-Motion (Seq. No. 05), Affirmation and Exhibits 2 Notice of Cross-Motion (Seq. No. 06), Affirmation and Exhibits 3 Affirmation in Opposition to Cross-Motions and Reply Affirmation and Exhibits 4 Affirmation in Reply and in Further Support of Cross-Motion and Exhibits 5 Reply Affirmation 6
Upon the foregoing papers, it is ordered that the motions are decided as follows:
Plaintiffs move (Motion Seq. No. 04), pursuant to CPLR § 3216, for an order vacating plaintiffs' default and restoring this pre-note action back to the pre-trial calendar and setting a new Note of Issue deadline. Defendants Scott Ratner, M.D., Andrew Berke, M.D., J. Jane Cao, M.D. and Scott J. Sherman, M.D. (collectively "defendant doctors") oppose plaintiffs' motion and cross-move (Motion Seq. No. 05), pursuant to CPLR § 3216, for an order striking plaintiffs' complaint, precluding plaintiffs from offering testimony at trial or compelling plaintiffs to provide discovery and inspection. Plaintiffs oppose defendant Doctors' cross-motion. Defendant
St. Francis Hospital ("hospital") submits partial opposition to plaintiffs' motion and cross-moves (Seq. No. 06), pursuant to CPLR § 3216, for an order dismissing the claim for loss of consortium as to the plaintiff Audrey Pierot for plaintiffs' failure to provide proof of adequate standing. Plaintiffs oppose defendant hospital's cross-motion.
The instant action is one sounding in medical malpractice arising from plaintiffs' allegations that defendants misinterpreted the results of a cardiac catheterization procedure, mistakenly advised plaintiff Mark Gordon, DDS ("Gordon") that he was in grave danger and must return to the hospital immediately and that defendants were negligent in the performance of an unnecessary cardiac catheterization procedure and in misapplying a "star closure" device so as to incarcerate nerves, as well as employing a defective "star closure" device.
The instant matter was certified ready for trial on July 6, 2010. On said date, the Court issued a Certification Order which stated that the Note of Issue for the case was required to be filed by plaintiffs on or before October 4, 2010.
Plaintiffs' counsel submits that "[n]otwithstanding plaintiffs' diligent efforts with regard to the prosecution of this action. . .a clerical error occurred in my office, occasioned by law office failure, which incorrectly extended the note of issue deadline from October 4, 2010 (the correct deadline) to December 13, 2010. . . . The reason that the note of issue deadline was incorrectly extended from October 4th to December 13th is because a member of my staff confused this Supreme Court, Nassau County action with another Supreme Court, Nassau County case of ours, to wit: Lambert v. Jahan S. Roofeh, M.D., Index No. 9886/06, whose note of issue deadline is properly December 13, 2010. . . . Upon my office's discovery of the error on October 7, 2010, only 3 days after the note of issue was actually due, plaintiffs acted immediately,that same day, by personally delivering the note of issue and certificate of readiness for trial to the county clerk, in the hopes of a de minimus 'grace period' within which to permissibly file the note of issue following the expiration of the deadline. . . . On October 11, 2010, plaintiffs became aware, by written notice from the court dated October 8, 2010. . ., that the above captioned case had been dismissed by the court for failure to timely file the note of issue pursuant to CPLR Rule 3216."
Plaintiffs argue that they never had any intention to abandon this action as is now ready for trial and the preliminary conference and compliance conference orders have been complied with, except for the timely filing of the Note of Issue. Plaintiffs further contend that defendants will suffer no undue prejudice should the case be restored to the court's calendar and defendants cannot possibly demonstrate any prejudice from plaintiffs' three day default.
Plaintiffs argue that the dismissal of the complaint should be vacated and the case restored to active status as plaintiffs can show a justifiable excuse for the three day delay in filing the Note of Issue, as well as show a meritorious cause of action. In support of their claim of a meritorious cause of action, plaintiffs submit a Physician's Affirmation of Merit. See Plaintiffs' Affirmation in Support Exhibit 2. Plaintiffs claim that the Physician's Affirmation of Merit is "specific, detailing the procedure that should not have occurred and opining that the care rendered to the plaintiff deviated from accepted medical practice, was medically negligent and was the cause of his injuries."
In opposition to plaintiffs' motion to restore, defendant doctors argue that "[p]laintiffs' affirmation in support of the within motion is riddled with misstatements, is deficient as a matter of law and fails to mention plaintiffs' outright refusal to respond to even the most basic discovery demands. Plaintiffs could not, and did not provide a satisfactory affidavit of merit, or offer a justifiable excuse for the failure to timely file a Note of Issue. The law has been settled for a very long time that these prerequisites are necessary to vacate dismissal on these facts."
With respect to the Physician's Affirmation of Merit, defendant doctors state that "[i]n order to prevail in his motion, plaintiffs were tasked with providing an affidavit from a competent cardiology expert setting forth specific and individualized instances of medical malpractice applicable to each separate defendant. In addition, plaintiffs' allegations need to be supported by the record. Plaintiffs were also tasked with setting forth how these claims proximately caused specific damages. Plaintiffs failed in this regard. Instead of satisfying the above burden, plaintiffs offered a speculative affirmation of a pathologist, with no relevant expertise. This affirmation failed to offer nothing beyond scattershot innuendo and speculation." Defendant doctors assert that plaintiffs failed to offer any evidence that this matter is meritorious. Defendant doctors state that the pathologist's Affirmation of Merit does not give specific detail as to the alleged malpractice of the defendant doctors and instead merely regurgitates the boilerplate allegations contained in the complaint. Defendant doctors contend that the pathologist's qualifications with respect to his familiarity with the field of cardiology are vague and conclusory. Defendant doctors argue that "in order to establish a claim of medical malpractice plaintiff must set forth with competent evidence a duty of care to the plaintiff, a breach (in the form of a departure) and, that such departure was a substantial factor in causing injury or damage to the plaintiff." Defendant doctors submit that plaintiffs' Physician's Affirmation of Merit failed to provide the necessary specific and individualized instances of medical malpractice applicable to each individual defendant doctor, as well as failed to set forth the necessary proximate causation to each individual defendant doctor. Defendant doctors state "[w]hile the pathology opinion is deficient on many levels, it is most glaringly deficient in that it does not establish how any of the individual cardiologists proximately caused plaintiffs' injuries. As a result, this Court should not restore this action."
To vacate the dismissal of the action, plaintiffs are required to demonstrate a reasonable excuse for their failure to comply with the court order to timely file the Note of Issue and the existence of a meritorious cause of action. See Rodriquez v. Five Towns Nissan, 69 A.D.3d 833, 892 N.Y.S.2d 768 (2d Dept. 2010); Bokhari v. Home Depot U.S.A., 4 A.D.3d 381, 771 N.Y.S.2d 395 (2d Dept. 2004); Sustad v. Karagiannis, 305 A.D.2d 664, 759 N.Y.S.2d 690 (2d Dept. 2003).
The Court finds that plaintiffs did demonstrate a reasonable excuse for their failure to timely file the Note of Issue. The alleged law office failure and prompt attempt to remedy said failure is found to be a reasonable excuse.
However, as stated above, in order to satisfy their burden to vacate the dismissal of the action, plaintiffs must also demonstrate the existence of a meritorious cause of action. An affidavit/affirmation of merit required to vacate the dismissal must do more than merely recite conclusions and opinions. Rather, it must present evidentiary facts showing merit and must be authored by someone having personal knowledge of such facts. An affirmation in which a patient's medical expert fails to establish that his opinions were grounded in facts appearing in hospital or medical records is insufficient to demonstrate a meritorious cause of action for medical malpractice, as required to avoid dismissal of the action for the party's failure to comply with the court order directing the party to file the Note of Issue by a certain date. See Sicoli v. Sasson, 76 A.D.3d 1002, 908 N.Y.S.2d 100 (2d Dept. 2010). Additionally, an Sicoli v. Sasson, 76 A.D.3d 1002, 908 N.Y.S.2d 100 (2d Dept. 2010). Additionally, an affirmation in which a patient's medical expert fails to state with specificity his observations as to the procedures or treatments performed and the alleged deviations from the acceptable standards of medical care by defendants is insufficient to demonstrate a meritorious cause of action for medical malpractice, as required to vacate the dismissal of the medical malpractice action. See Bollino v. Hitzig, 34 A.D.3d 711, 825 N.Y.S.2d 511 (2d Dept. 2006).
When viewing the moving papers in their best light, the Court finds that plaintiffs failed to demonstrate a meritorious cause of action. The Affirmation of Merit submitted by plaintiffs failed to provide the necessary specific and individualized instances of medical malpractice applicable to each individual defendant doctor as well as failed to set forth the necessary proximate causation to each individual defendant doctor. Said Affirmation of Merit failed to specify the acceptable standard of medical care, any specific evidence of deviation therefrom in the medical care of plaintiff Gordon and any causal connection between the care plaintiff Gordon received from defendant doctors and plaintiff Gordon's alleged injuries. See Nowell v. NYU Medical Center, 55 A.D.3d 573, 865 N.Y.S.2d 309 (2d Dept. 2008). See also Perez v. Astoria General Hospital, Inc., 260 A.D.2d 457, 688 N.Y.S.2d 195 (2d Dept. 1999). The Court finds that plaintiffs' Affirmation of Merit is completely conclusory on its face. It merely indicates that the expert pathologist reviewed the transcripts from the Examination Before Trial testimony of the defendant doctors and then indicated that his/her opinion, based upon said transcripts, was that the negligence of each of the defendant doctors was a substantial cause of injury to plaintiff. See Yushavayev v. Kopelman, 307 A.D.2d 996, 763 N.Y.S.2d 484 (2d Dept. 2003); Nepomniaschi v. Goldstein, 182 A.D.2d 743, 582 N.Y.S.2d 761 (2d Dept. 1992).
Therefore, plaintiffs' motion (Motion Seq. No. 04) for an order vacating plaintiffs' default and restoring this pre-note action back to the pre-trial calendar and setting a new Note of Issue deadline is hereby denied. As the Court has denied plaintiffs' motion to vacate the dismissal of the action, defendant doctors' cross-motion (Motion Seq. No. 05) for an order striking plaintiffs' complaint, precluding plaintiff from offering testimony at trial or compelling plaintiff to provide discovery and inspection is moot.
Additionally, the Court's denial of the plaintiffs' motion to vacate the dismissal of the action also makes defendant hospital's motion (Motion Seq. No. 06) moot as the action has been dismissed in its entirety. However, the Court does find that plaintiff Audrey Pierot is not, standing in this action to bring her claim of loss of consortium. Plaintiffs' claims that purport to establish the that they had common law marriage unions recognized in Pennsylvania, Utah and Washington D.C., which then in turn should be recognized in New York, are without merit. Plaintiffs' affidavits in support of their opposition to defendant hospital's cross-motion are insufficient to satisfy the requirements necessary to fulfill legal standing as a lawfully recognized married couple and do not satisfy the necessary threshold requirements for common law marriage in Pennsylvania, Utah and Washington D.C.
This constitutes the Decision and Order of this Court.