Opinion
INDEX NO.: 11-23187
10-10-2017
BOBBI-SUE PALMER, Plaintiff(s), v. AGOSTINO CERVONE, M.D., MARY JACOBS, R.N.F.A., PECONIC SURGICAL GROUP, P.C., EASTERN LONG ISLAND HOSPITAL and PECONIC BAY MEDICAL CENTER, Defendant(s).
PLTF ATTORNEY: IRA M. PERLMAN, ESQ. and ROBERT D. ROSEN, ESQ. 60 Cuttermill Road, Suite 206 Great Neck, New York 11021 DEFTS' ATTORNEYS: FUMUSO, KELLY, SWART, FARRELL, POLIN AND CHRISTESEN, LLP Attorneys for Eastern Long Island Hospital 110 Marcus Boulevard Hauppauge, New York 11788 GABRIELLE & MARANO, LLP Attorneys for Peconic Surgical Group, PC and Agostino Cervone, M.D. 100 Quentin Roosevelt Boulevard Garden City, New York 11530
SHORT FORM ORDER
PRESENT: Hon. Sanford Neil Berland , A.J.S.C. ORIG. RETURN DATE: NOVEMBER 19, 2015
FINAL RETURN DATE: MARCH 7, 2017
MOT. SEQ. #: 008 WDN ORIG. RETURN DATE: DECEMBER 15, 2015
FINAL RETURN DATE: MARCH 7, 2017
MOT. SEQ. #: 009 MD ORIG. RETURN DATE: JUNE 14, 2016
FINAL RETURN DATE: MARCH 7, 2017
MOT. SEQ. #: 010 MOT D ORIG. RETURN DATE: OCTOBER 11, 2016
FINAL RETURN DATE: MARCH 7, 2017
MOT. SEQ. #: 011 MD PLTF ATTORNEY:
IRA M. PERLMAN, ESQ. and ROBERT D. ROSEN, ESQ.
60 Cuttermill Road, Suite 206
Great Neck, New York 11021 DEFTS' ATTORNEYS:
FUMUSO, KELLY, SWART, FARRELL, POLIN
AND CHRISTESEN, LLP
Attorneys for Eastern Long Island Hospital
110 Marcus Boulevard
Hauppauge, New York 11788 GABRIELLE & MARANO, LLP
Attorneys for Peconic Surgical Group, PC and
Agostino Cervone, M.D.
100 Quentin Roosevelt Boulevard
Garden City, New York 11530
Upon the reading and filing of the following papers in this matter: (1) Amended Notice of Motion by defendant Eastern Long Island Hospital, dated June 14, 2016, and supporting papers; (2) Answering Affidavits made by plaintiff, dated June 29, 2016; (3) Replying Affidavits made by defendant Eastern Long Island Hospital, dated July 25, 2016, and supporting papers; it is,
ORDERED that the motion by defendants Agostino Cervone M.D. and Peconic Surgical Group, P.C. [Mot. Seq. #008) to compel plaintiff to provide certain authorizations is hereby withdrawn pursuant to a stipulation so-ordered by Hon. Sanford N. Berland dated September 19, 2017; and it is further
ORDERED that the motion made by defendant Eastern Long Island Hospital (Mot. Seq. #009) is hereby denied as moot; and it is further
ORDERED that the motion by defendant Eastern Long Island Hospital (Mot. Seq. # 010) for an order pursuant to CPLR 3217 [b] is granted to the extent indicated below; and it is further
ORDERED that the motion by defendants Agostino Cervone, M.D. and Peconic Surgical Group, P.C., made pursuant to CPLR 3024 [c] to strike certain prejudicial, scandalous, inflammatory and irrelevant language contained in plaintiff's Bill of Particulars dated May 1, 2012 and plaintiff's Supplemental/Amended Bill of Particulars dated April 25, 2016 is denied; and it is further
ORDERED that the remaining parties to the action are to appear for a previously scheduled compliance conference on Wednesday, November 8, 2017 at 9:30 a.m. in Part 6 of the Supreme Court located at the Cromarty Court Complex at 210 Center Drive in Riverhead, New York.
The plaintiff Bobbi-Sue Palmer commenced this action against the defendants Agostino Cervone, M.D., Mary Jacobs, R.N.F.A., Peconic Surgical Group, P.C., Eastern Long Island Hospital and Peconic Bay Medical Center to recover damages for medical malpractice and lack of informed consent. By her complaint, the plaintiff alleges, among other things, that the defendants were negligent in the performance of a laparoscopic cholecystectomy on February 10, 2009. The plaintiff further alleges that during the surgery at Eastern Long Island Hospital, Dr. Cervone clipped, or transected, her common bile duct, which resulted in bile duct obstruction, bile leakage, obstructive jaundice and other complications and necessitated subsequent surgeries to repair the transsection. Defendants Mary Jacobs, R.N.F.A. and Peconic Bay Medical Center were previously discontinued from the action.
MOTION SEQUENCE 010
Defendant Eastern Long Island Hospital (ELIH), based upon a partially executed stipulation discontinuing the action with prejudice as against them only, now seeks an order pursuant to CPLR 3217 [b] "so-ordering" the Stipulation of Discontinuance as against them. At the time the motion was served, the stipulation, which is dated April 25, 2016, had been executed by the plaintiff and the moving defendant, but no other parties. Counsel for defendants Dr. Cervone and Peconic Surgical Group, P.C. submitted an Affirmation in Opposition to "ensure that their statutory rights including, but not limited to, General Obligation Law 15-108, CPLR Article 16, and all other applicable sections/provisions of New York State Law" are preserved should ELIH be discontinued from the action.
A plaintiff may discontinue an action against a party pursuant to CPLR 3217[a] by filing with the Clerk of the Court a written stipulation signed by the attorneys of record for all the parties. However, where, as here, one or more parties in the action fail to execute the stipulation, an application may he made pursuant to CPLR 3217[b] seeking an order of the court discontinuing the action. Although the Court has the discretion to grant or deny an application to discontinue made pursuant to CPLR 3217 [b] ( Tucker v Tucker , 55 NY2d 378, 449 NYS2d 683 [1982]), in the absence of special circumstances, particularly prejudice to the substantial rights of any of the parties to the action, a motion for a voluntary discontinuance should be granted (see Blackwell v Mikevin Mgmt . III , LLC , 88 AD3d 836, 931 NYS2d 116 [2d Dept 2011]; Expedite Video Conferencing Servs., Inc. v Botello , 67 AD3d 961, 890 NYS2d 82 [2d Dept 2009]; Citibank v Nagrotsky , 239 AD2d 456, 457, 658 NYS2d 966 [2d Dept 1997]).
In support of their motion, ELIH argues that as no cross claims have been asserted against them by any of the remaining defendants, and as plaintiff has agreed to discontinue her claims against them, the respective rights of the remaining parties will not be prejudiced by permitting the action to be discontinued against them only. The Court agrees. Although in certain instances a discontinuance can operate as the equivalent of a release or covenant not to sue within the meaning of GOL 15-108, thereby reducing the plaintiff's recovery from the remaining defendants while insulating the discontinued parties from claims for contribution under CPLR Article 14 and also affecting the allocation and recovery of non-economic damages under CPLR Article 16 (cf. Tereshchenko v Lynn , 36 AD3d 684, 685, 828 NYS2d 185 [2d Dept 2007]; Hanna v Ford Motor Co., 252 AD2d 478, 479, 675 NYS2d 125 [2d Dept 1998]; Killeen v Reinhardt , 71 AD2d 851, 853, 419 NYS2d 175 [2d Dept 1979]), pursuant to the 2007 amendment to GOL 15-108, which added subdivision [d], discontinuances for which no consideration or consideration of one dollar or less is paid do not have that effect. That amendment was proffered by the New York State Advisory Committee on Civil Practice specifically to facilitate plaintiffs voluntarily releasing "'ostensibly blameless defendants'" by removing the fear that their recoveries against remaining defendants would be reduced (see Fleck v City of New York , 21 Misc 3d 1146[A], 875 NYS2d 820 2008 , citing to and quoting from Report of the Advisory Committee on Civil Practice, January 2006 at 43). Where, as is understood to be the ease here, no consideration was or will be received by plaintiff for the discontinuance, plaintiff's award, if any, will not be reduced pursuant to subdivision [a] of COL 15-108 ( Fleck v City of New York , supra; Calise v Heartland Med . Servs., P.C., 18 Misc 3d 332, 334 [Sup Ct, Richmond County 2007]); conversely, however, the defendant against whom the action has been discontinued cannot benefit from the protection of subdivision [b] GOL 15-108 and therefore can, for example, be impleaded back into the case if the non-released defendants believe that there is a basis for pursuing contribution claims against them (see Calise v Heartland Med . Servs., P.C., supra). Thus, although there will be no reduction in the plaintiff's recovery as a result of this discontinuance, should the remaining defendants believe that the discontinued defendant bears some measure of culpability for the plaintiff's injuries, their remedy is to seek contribution from them, as, inter alia, by impleading the discontinued defendant back into the case as third-party defendants and having the jury determine whether or not they are liable for contribution.
Accordingly, the Court grants movant's application to the extent that plaintiff's complaint is hereby discontinued as against defendant ELIH only, without prejudice to the right of each of the remaining defendants to pursue contribution from the discontinued defendant, as by filing and serving a third-party summons and complaint asserting claim(s) for contribution against the discontinued defendant or otherwise. Counsel for defendant ELIH is directed to serve a copy of this order upon the Calendar Clerk.
MOTION SEQUENCE 011
Defendants Agostino Cervone, M.D. and Peconic Surgical Group, P.C. seek to strike certain language contained in plaintiff's Bill of Particulars and Amended Bill of Particulars as prejudicial, scandalous, inflammatory and irrelevant pursuant to CPLR 3024 [c]. Specifically, movants seek to strike the words "reckless/recklessly" and/or "careless/carelessly" from in excess of 18 paragraphs of the aforementioned papers. Plaintiff opposes the motion as untimely. Plaintiff further argues that the words of issue are used to amplify the alleged acts of malpractice and negligence that constitute the claims asserted by her and as such, the words arc permissible and not prejudicial.
Pursuant to CPLR 3024[b], "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." This rule is applicable to bills of particulars as well (see Aronis v TLC Vision Ctrs ., Inc., 49 AD3d 576, 578, 853 NYS2d 621 [2d Dept 2008]). In reviewing a motion pursuant to CPLR 3024, "the inquiry is whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action." (see Irving v Four Seasons Nursing & Rehab . Ctr., 121 AD3d 104 6, 995 NYS2d 184 [2d Dept 2014]). Matters that are unnecessary to the viability of the cause of action and would cause undue prejudice to the defendants should be stricken from the pleading ( Irving v Four Seasons Nursing & Rehab. Ctr., supra; Kinzer v Bederman , 59 AD3d 496, 873 NYS2d 692 [2d Dept 2009]). Further, pursuant to CPLR 30241[c], "[a] notice of motion under this rule shall be served within twenty days after service of the challenged pleading...." Here, it is undisputed that plaintiff served her Bill of Particulars on May 1, 2012, and that defendants motion to strike (Mot. Seq. # 011) was not filed until September 22, 2016, more than four years after service of the Bills of Particulars. Clearly, defendants' time to move to strike certain language found in the Bill of Particulars has expired. However, it is well-settled that:
[F]lexibility on the time question is especially appropriate for the motion to strike under CPLR 3024[b]. If the matter in the pleading is prejudicial or scandalous and irrelevant, it is as much so later in the case as it is at the outset. It would be preferable for the objectant to make the CPLR 3024[b] motion early, but if there is really substance to the objection and it is made after the expiration of the 20-day period, it can still be entertained by the court.Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3024:5; see also Szoiosi v Long Is . R. R. Co., 52 Misc2d 1081, 1082, 277 NYS2d 587 (Sup Ct, Suffolk County 1967). Thus, as defendants have moved pursuant to CPLR 3024[b] to strike language on the ground that the language is scandalous, prejudicial and unnecessary, the court finds that the motion is timely. However, in this case, the Court does not find the language to be prejudicial; rather, it is a permissible amplification of the claimed negligent acts (see Rotondi v Vaughan , 28 Misc 2d 656, 657, 220 NYS2d 213 [Sup Ct, Nassau County 1961]. In each of the paragraphs referenced by movants, the use of the adjectives and adverbs "reckless," "recklessly," "careless" and "carelessly" are followed by specific allegations of acts of negligence or malpractice and arc coordinate with the conduct plaintiff alleges. Accordingly, the motion to strike is denied. The remaining parties to The action are reminded that an appearance is required at a previously scheduled compliance conference on Wednesday, November 8, 2017 at 9:30 a.m. in Part 6 of the Supreme Court located at the Cromarty Court Complex at 210 Center Drive in Riverhead, New York. Dated: October 10 , 2017
Riverhead, New York
/s/ _________
HON. SANFORD NEIL BERLAND, A.J.S.C.