Opinion
10656/02.
Decided January 11, 2006.
Upon the foregoing papers, the motion (No. 2289) by defendant Taksin Ratnarathorn, M.D. for summary judgment dismissing so much of the complaint as sounds in wrongful death on behalf of decedent's alleged spouse, Gordon Powell, is granted, as is that portion of the cross motion (No. 2539) by defendant Kabeeruddin Hashmi, M.D. and Greater Island Medical Group, P.C. d/b/a Staten Island Medical Group (hereafter "SIMG") which is for like relief; that further branch of the cross motion for summary judgment which seeks dismissal of the complaint insofar as it relates to Dr. Kabeeruddin is granted in its entirety, as are the claims predicated on lack of informed consent and loss of consortium as against defendant SIMG; the balance of the cross motion, which is for summary judgment dismissing the complaint as it relates to SIMG in its capacity as the employer of Dr. Ratnarathorn, is denied.
The within action arises out of defendants' alleged failure to timely diagnose breast cancer in one Debra Abdelbarry, now deceased. On February 25, 2002, Ms. Abdelbarry instituted a cause of action against defendants sounding in medical malpractice and lack of informed consent, but following her death from breast cancer on July 26, 2002, it was stipulated that the Public Administrator, Gary Gotlin, as the Administrator of the Estate of Debra Abdelbarry, be substituted as the party-plaintiff ( see Exhibit "C" to Cross Motion). As applicable, on or about November 30, 2004, said plaintiff was granted leave to add a cause of action for wrongful death and to serve a supplemental bill of particulars.
The motion and so much of the cross motion as seeks dismissal of the claims for wrongful death specifically as it relates to Gordon Powell, decedent's purported "Islamic husband" is granted.
According to the deposition testimony of Mr. Powell, decedent provided him with "pecuniary support" prior to her death. However, he has failed to produce any documentary or other evidence of the purported marriage, Islamic or civil, despite repeated requests. Thus, his testimony (Movant's Exhibit "D", p 11) to the effect that he married decedent on March 30, 2002, four months prior to her death, at a Yonkers mosque is wholly unsupported ( id. at p 12). Moreover, there is nothing in his testimony indicating that he resided with plaintiff other than sporadically. In fact, it is undisputed that he resided in Yonkers and she in Staten Island ( id. at p 56).
In opposition, plaintiff places principal reliance on two 2001 decisions emanating from the Supreme Courts in Queens and Nassau Counties (Persad v. Balram, 187 Misc 2d 711 and Ansellam v. Ansellam, 189 Misc 2d 27, affd. on other grounds 15 AD3d 570), both of which stand for the proposition that the failure to secure a marriage certificate does not per se render a marriage void. However, both cases are clearly distinguishable on their facts in that the proponent of the marriage in each was able to produce sufficient other evidence to demonstrate that a marriage had occurred. At bar, there is no such evidence: no pictures, wedding invitations, witness affidavits or a statement from either the mosque or its spiritual leader, claiming to have participated in the ceremony. "[W]here persons live and cohabit as husband and wife . . . a presumption arises that they have been legally married and this presumption . . . can be rebutted only by the most cogent and satisfactory evidence" ( Matter of Lowney, 152 AD2d 574, 575). Here, however, the unsupported testimony of sporadic cohabitation is insufficient to give rise to the presumption. A valid marriage cannot be predicated on such tenuous proof. Accordingly, Powell's claim for pecuniary loss based on his alleged status as a beneficiary in the wrongful death action must be dismissed.
In view of the above, Powell's further claim for funeral expenses must also be dismissed. Powell admitted at his EBT that one month prior to decedent's death, he emptied her bank account of $2,000 consolidated it into his own funds, which he then used to purchase a burial plot costing $600.00 (Movant's Exhibit "D", p 63).
That branch of the cross motion which is for summary judgment dismissing the claim of negligent hiring is also granted. Plaintiff has not only failed to plead negligent hiring as a separate cause of action in the complaint ( see Bieler v. Bodner, 65 NY2d 65) but has never in the succeeding three years moved to amend the complaint to include such a cause of action or bothered to identify any individual who was allegedly negligently hired or supervised by SIMG ( see Sita v. Long Island Jewish Med. Ctr, ___ AD2d ___, 2005 Slip Op 07949). The Court further notes that plaintiff's attempt to shift onto defendants the duty to demand particulars regarding an unpleaded cause of action is without merit.
Finally, in the absence of any opposition thereto, those further branches of defendants' cross motion which seek dismissal of the complaint as it relates to (1) Dr. Kabeeruddin and (2) the claims of loss of consortium and lack of informed consent as against defendant SIMG are granted. However, so much of the cross motion as seeks dismissal of the balance of the complaint against SIMG is denied.
Where, as here, the moving party has failed to set forth evidentiary facts sufficient to demonstrate its entitlement to judgment as a matter of law on facially sufficient cause(s) of action, the motion must be denied ( Roman v. Hudson Tel Assoc, 15 AD3d 227). Thus, it is unnecessary to consider the sufficiency of plaintiff's opposing papers as they relate to the allegations of vicarious liability against SIMG for the acts of Dr. Ratnarathorn during his care and treatment of the deceased ( see Alvarez v. Prospect Hosp., 68 NY2d 320).
Accordingly, it is hereby
ORDERED that the motion and so much of the cross motion as seeks dismissal of the wrongful death action as it relates to the claim for financial loss on the part of Gordon Powell are both granted; and it is further
ORDERED that all such causes of action are severed and dismissed; and it is further
ORDERED that the further branch of the cross motion which seeks dismissal of the claims of lack of informed consent, negligent hiring and loss of consortium against defendant Staten Island Medical Group are granted; and it is further
ORDERED that the foregoing causes of action are severed and dismissed; and it is further
ORDERED that so much of the cross motion as seeks dismissal of the complaint as against Hashmi Kabeeruddin, M.D. is granted in its entirety; and it is further
ORDERED that the causes of action against Dr. Kabeeruddin are severed and dismissed; and it is further
ORDERED that the balance of the cross motion is denied; and it is further
ORDERED that the Clerk enter judgment accordingly.