Opinion
Appeal No. 15201 Index No. 155675/17Case No. 2021-02247
02-03-2022
Mehran Manouel, M.D., Plaintiff-Appellant, v. Nathan L. Dembin et al., Defendants-Respondents. Appeal No. 15201 No. 2021-02247
Richard Pu, New York, for appellant. O'Toole Scrivo, LLC, New York (Young Yu of counsel), for Nathan L. Dembin and Nathan L. Dembin & Associates, P.C., respondents. Ralph A. Erbaio, Jr., respondent pro se.
Richard Pu, New York, for appellant.
O'Toole Scrivo, LLC, New York (Young Yu of counsel), for Nathan L. Dembin and Nathan L. Dembin & Associates, P.C., respondents.
Ralph A. Erbaio, Jr., respondent pro se.
Before: Kapnick, J.P., Mazzarelli, Gesmer, Kennedy, Pitt, JJ.
Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about May 5, 2021, which, to the extent appealed from as limited by the briefs, granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff fails to articulate any persuasive basis to disturb the motion court's order. Although defendant Ralph Erbaio moved for summary judgment more than 120 days after the note of issue was filed, his motion was timely in light of the pandemic-related Executive Orders tolling motion deadlines (CPLR 3212[a]; Executive Order Nos. 202.8, 202.67 [9 NYCRR 8.202.8, 8.202.67]). The motion court applied the proper standard of care to defendants in this legal malpractice action (see Bassim v Halliday, 234 A.D.2d 628 [3d Dept 1996], appeal dismissed 89 N.Y.2d 1001 [1997]; see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442 [2007]). The record establishes, as a matter of law, that defendants did not have time to pre-clear the consent agreement between plaintiff and New York State Office of Professional Medical Conduct (OMPC) with the New York State Office of Medicaid Inspector General (OMIG). Contrary to plaintiff's contention, his expert's conclusory affidavit failed to raise an issue of fact.
In view of the foregoing, we do not reach plaintiff's argument regarding his tax returns, and we decline to consider any of the arguments plaintiff raises for the first time in his reply brief.