Opinion
Index No. 604175/18 Motion Seq. Nos. 003 004 005
10-19-2020
MARC A. PERGAMENT, AS TRUSTEE OF THE ESTATE OF HERBERT JENKINS and THERESA JENKINS, PIaintiff(s) v. ST. FRANCIS HOSPITAL, ORZAK CENTER FOR EXTENDED CARE AND REHABILITATION a/k/a NORTH SHORE LIJ ORZAK CENTER FOR EXTENDED CARE AND REHABILITATION and SOUTH SHORE REHABILITATION AND NURSING CARE CENTER, Defendant(s).
Unpublished Opinion
Motions Submitted: 8/18/2020
Honorable James P. McCormack Justice
The following papers read on this motion:
Notices of Motion/Supporting Exhibits. ..................................XX
Notice of Cross Motion/Supporting Exhibits..................................X
The cross motion is technically defective and is untimely. It is defective because it was brought against a non-moving party. As no party raised an objection, the court will treat it as a motion, The untimeliness is addressed, infra.
Affirmation in Opposition......................................................X
Reply Affirmations....................................................................XXX
Sur-replies.........................................................................................XXX
All parties were granted leave to submit sur-replies to address issues related to Plaintiffs' expert affirmations, which are discussed in greater detail, infra.
Defendant, St. Francis Hospital (St. Francis), moves this court (Motion Seq. 003) for an order, pursuant to CPLR 3212 granting it summary judgment dismissing the complaint against it. Defendants, Orzak Center for Extended Care and Rehabilitation a/k/a North Shore LIJ Orzak Center for Extended Care and Rehabilitation (Orzak), moves for summary judgment (Motion Seq. 004), dismissing the complaint against it. Defendant, South Shore Rehabilitation and Nursing Care Center (South Shore) moves for summary judgment (Motion Seq. 005) dismissing the complaint against it. Plaintiff, Marc A. Pergament, as Trustee of the Estate of Herbert Jenkins (Jenkins), opposes the motions. None of the Defendants oppose the motions of their co-Defendants.
Theresa Jenkins' derivative claim was discontinued
Jenkins commenced this nursing home malpractice action by service of a summons and complaint dated March 29, 2018. Issue was joined by service of an answer by St. Francis dated May 4, 2018. South Shore interposed an answer dated May 30, 2018. Orzak served an answer dated May 11, 2018. The case certified ready for trial on July 25, 2019, and a note of issue was filed on November 4, 2019. On February 3, 2020, this court issued an order denying two motions to vacate the note of issue. The order describes in detail the numerous discovery orders and directive the parties failed to abide by in this case. The within motions Continue the parties' complaints and finger pointing about discovery issues.
On March 2, 2016, Jenkins had an anterior cervical discectomy of C3-C4, C4-C5 and partial corpectomy at C4, C5 and C6 by two doctors at Winthrop University Hospital. After leaving Winthrop, Jenkins went to Orzak. Upon his admission to Orzak, his skin was noted to be intact. He did require significant care and was unable to perform most functions without assistance, such as toileting and dressing. After spending three days at Orzak, Jenkins was sent to St. Francis on March 11, 2016, due to a cerebral fluid leak. Upon arrival at St. Francis, Jenkins scored a 14 on the Braden Scale, which indicted a moderate risk for skin breakdown. On March 13, 2016, Nurse Natalie Zolotareva noted "small breaks" at Jenkins' sacrum. On March 14, 2016, a physical therapy assessment was done. Jenkins was still very weak, and his neurosurgeon ordered bed rest with range of motion exercises only. On March 17, 2016, Nurse Scott Sherrin noted damaged skin with small open areas at the sacrum/buttocks. Nurse Zolotavera noted that the skin damage was increased later that day.
Neither of the two doctors nor Winthrop University Hospital are defendants in this matter.
Throughout this period, the medical records indicate that a skin care plan was in place which included, but WAS not limited to, a tortoise positioner, turning and positioning. Jenkins was also reminded to shift his weight often.
On March 18, 2016, Nurse Zolotareva noted the sacral ulcer showed some improvement. On March 21, 2016 Penelope McNicholas, PA noted "Skin breakdown in sacral area, multiple areas". The next relevant note regarding the skin ulcer is from Nurse Kathleen Buckley on March 24, 2016. Nurse Buckley notes an unstageable Sacrum pressure ulcer. On March 28, 2016 Nurse Natalie Piquant noted the unstageable pressure ulcer had a foul odor. Nurse Lee Nadel informed Dr. Johnson on March 20, 2016 that the pressure ulcer had a foul smell and a consult with plastic surgery was requested. On March 30, 2016, the notes of Dr. Davd Brieff indicates "large sacral decubitus, foul odor, unstageable." On that same day, Dr. Noel Natoli, a plastic surgeon, assessed the pressure ulcer, measured it at 10 x 12, and debrided the area bedside. The ulcer appeared infected, and Dr. Natoli classified the wound at Stage IV. A fever Jenkins was running seemed to be resolved after the debridement. On April 8, 2016 Dr. Natoli noted that the area was healing well after being debrided. On that same day, Jenkins was discharged from St. Francis and transferred back to Orzak.
Upon admission to Orzak, it was noted Jenkins had a Stage IV 10 x 12 x 4 cm pressure ulcer. A skin care plan was put in place due to "fragile skin" and included observation, nutrition, creams and ointments, turning and positioning every two hours, pressure redistribution mattress, and positioning devices. On April 13, the pressure ulcer was measured at 10 x 11 x 4 cm and appeared to be healing. A wound vac was ordered, but would not arrive until April 20, 2016, on which date it was placed on the ulcer. However, it was difficult for the vac to achieve a seal because it was so close to the rectum. On April 21, 2016, Jenkins had a fever that reached 104, Dr. Lee was notified, and an order was given to transfer Jenkins to an emergency room, but Jenkins refused. His temperature would vary after that. At 6:00 a.m. on April 22, 2016, his temperature was 102.2. Dr. Lee was again notified and again ordered a transfer to an emergency room. This time Jenkins consented and at 8:10 a.m. he was transferred to Franklin Hospital. His temperature at the time of transfer was 97.9.
The triage notes from the Franklin Hospital Emergency Department indicate Jenkins was transferred due to fever and to rule out sepsis. His temperature was 99.8. The triage notes state that the pressure ulcer had necrotic tissue and that muscle was exposed. The ulcer measured 10 x 13 x 5 cm, A bedside debridement was ordered by Dr. Devendra Brahmbhatt. Jenkins was also Suffering from a urinary tract infection (UTI) which was likely related to the Foley catheter inserted after the back surgery. On April 23, 2016, a vascular surgeon performed a bedside debridement. At Jenkins' request, he was transferred back to St. Francis on April 28, 2016, Upon admission to St. Francis, the ulcer measured 12x 12 x 6 cm and there was exposed muscle and bone. On April 29, 2016, an infectious disease doctor believed the ulcer to be infected, but Was unclear if Jenkins had a UTI. Dr. Natoli, the plastic surgeon, assessed the wound as well and noted some necrotic tissue. He performed a bedside debridement. The wound would heal going forward, and on May 20, 2016, Dr. Natoli changed the vac. At that time, it measured 8.5 x 7 x 3.5 cm. On May 24, 2016, Jenkins was discharged from St. Francis and transferred to South Shore.
Upon admission to South Shore, a plan was put in place to assess the Foley catheter three times a day, and a detailed plan for the pressure ulcer included topical medication, turning every two hours and vac therapy. On June 14, 2016 Nurse Practitioner Mattone noted that the wound had increased in size and had worsened since admission. On July 12, 2016, the would was measured and had decreased in size, but there were no other measurements of it from South Shore after that. However, issues with the Foley catheter would continue. On August 8, 2016, at 4:27 a.m., Jenkins had a mild fever, was diaphoretic and the catheter contained a small amount of cloudy, foul smelling urine. Dr. Hasan was informed via text, but did not respond. Jenkins would later bleed from his penis. He was eventually transferred to Winthrop, and was admitted at 7:35 p.m. .
St. Francis, Orzak and South Shore all now move for summary judgment, alleging their care did not deviate from the standard of care.
It is well established that a party moving for summary judgment must make prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact(Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853 [1985]). Once the moving party has made a prima facie showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form which establishes the existence of a material issue of fact (Zuckerman v City of New York, 49 N.Y.2d 557 [1980]; Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]). A defendant seeking summary judgment bears the burden of establishing its prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of its defense, rather than merely by pointing out gaps in the plaintiff s case (Alizio v Feldman, 82 A.D.3d 804 [2d Dept 2011]; Nationwide Prop. Cas. v Nestor, 6 A.D.3d 409, 410 [2d Dept 2004]). Where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers (Lee v Second Ave. Vil. Partners, 100 A.D.3d 601 [2d Dept 2012], citing Winegrad v New York Univ. Med. Center, supra, at p. 852). The motion court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to opponents (Giraldo v Twins Ambulettes Serv., Inc., 96 A.D.3d 903 [2d Dept 2012]), Further, "[t]he courts function on a motion for summary judgment is 'to determine whether material factual issues exist, not to resolve such issues (citations omitted)'" (Ruiz v Griffin, 71 A.D.3d 1112, 1115 [2d Dept 2010], quoting Lopez v Beltre, 59 A.D.3d 683, 685 [2d Dept 2009]).
" Tn order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff s injuries'" (DiGeronimo v Fuchs, 101 A.D.3d 933, 935 [2d Dept 2012], quoting Stukas V Streiter, 83 A.D.3d 18, 23[(2d Dept 2011]; see also, Klein v Argoff, 101 A.D.3d 1090 [2d Dept 2012]). Therefore, "[i]n an action sounding in medical malpractice, a defendant physician moving for summary judgment must establish, prima facie, either that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the plaintiff s injuries (emphasis added)" (LeMaire v Kunchman, 102 A.D.3d 659 [2d Dept 2013], citing Faicco v Golub, 91 A.D.3d 817, 818 [2d Dept 2012]; Stukas v Streiter, supra at p. 24; see also, Klein v Argoff, supra; DiGeronimo v Fuchs, supra). " Tn order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiffs [complaint and] bill of particulars (citations omitted)'" (Bendel v Rajpal, 101 A.D.3d 662, 663 [2d Dept 2012]. quoting Wall v Flushing Hosp. Med. Ctr., 78 A.D.3d 1043, 1045 [2d Dept 2010]).
"Conclusory statements set forth in an affirmation of a medical expert which do not refute or address the specific allegations of negligence made by the plaintiff in his or her complaint and bill of particulars are insufficient to make a prima facie showing that a defendant physician is entitled to judgment as a matter of law (citations omitted)" (Bendel v Rajpal, supra, at p. 663).
Once a defendant physician has made the requisite showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact with respect to the issues on which the defendant met the prima facie burden (LeMaire v Kunchman, supra, at p. 659 [citation omitted])." 4[G]eneral allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat a defendant's motion for summary judgment (citations omitted)' " (Bendel v Rajpal, supra, at p. 189, quoting Bezerman v Bailine, 95 A.D.3d 1153, 1154 [2d Dept 2012]).
Furthermore," '[i]n a [medical] malpractice action, where causation is often a difficult issue, a plaintiff need do no more than offer sufficient evidence from which a reasonable person might conclude that it was more probable than not' that the defendant's deviation was a substantial factor in causing the injury (citations omitted)" (Goldberg v Horowitz, 73 A.D.3d 691, 694 [2d Dept 2010], quoting Johnson v Jamaica Hosp. Med. Ctr., 21 A.D.3d 881 [2d Dept 2005]; see also, Holton v Sprain Brook Manor Nursing Home, 253 A.D.2d 852 [2d Dept 1998], Iv denied, 92 N.Y.2d 818 [1999]). "A plaintiff s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant's act or omission decreased the plaintiff s chance Of a better outcome or increased the injury, 'as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiffs chance of a better outcome or increased [the] injury (citations omitted)'" (Goldberg v Horowitz, supra, at p. 694, quoting Alicea v Ligouri, 54 A.D.3d 784 [2nd Dept 2008] [internal quotation marks omitted]).
The complaint contains seven causes of action, to wit: 1) negligent hiring/supervision against St. Francis, 2) medical malpractice against St. Francis, 3) violations of New York Public Health Law (PHL) §§2801-d and 2803-c against Orzak, 4) negligence against Orzak, 5) violations of New York Public Health Law (PHL) § §2801-d and 2803-c against Orzak, 6) negligence against South Shore, 7) loss of consortium. According to the bill of particulars, Jenkins suffered the following injuries due to St. Francis' deviations from the standard of care: Stage IV pressure ulcer of sacral area; Sepsis; Osteomyelitis; Need for surgical debridement; Need for plastic surgery for wound repair; Deep tissue injuries; Need for intravenous antibiotics; Urinary tract infection; Malnutrition; Inability to perform activities of daily life; Health severely compromised due to pressure ulcers; Infections and pain; Dehydration; Pain and suffering; Loss of dignity; and Loss of enjoyment of life. Home, 253 A.D.2d 852 [2d Dept 1998], Iv denied, 92 N.Y.2d 818 [1999]). "A plaintiff's evidence of proximate cause may be found legally sufficient even if his of her expert is unable to quantify the extent to which the defendant's act or omission decreased the plaintiffs chance of a better outcome or increased the injury, 'as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiff s chance of a better outcome or increased [the] injury (citations omitted)'" (Goldberg v Horowitz, supra, at p. 694, quoting Alicea v Ligouri, 54 A.D.3d 784 [2nd Dept 2008] [internal quotation marks omitted]).
The seventh cause of action is labeled "As and For Eighth Cause of Action For Loss of Consortium". As discussed, supra, the derivative claim has been discontinued.
The complaint contains seven causes of action, to wit: 1) medical malpractice against St. Francis, 2) medical malpractice against St. Francis, 3) violations of New York Public Health Law (PHL) §§2801 -d and 2803-c against Orzak, 4) negligence against Orzak, 5) violations of New York Public Health Law (PHL) §§2801 -d and 2803-c against Orzak, 6) negligence against South Shore, 7) loss of consortium. According to the bill of particulars, Jenkins suffered the following injuries due to St. Francis' deviations from the standard of care: Stage IV pressure ulcer of sacral area; Sepsis; Osteomyelitis; Need for surgical debridement; Need for plastic surgery for wound repair; Deep tissue injuries; Need for intravenous antibiotics; Urinary tract infection; Malnutrition; Inability to perform activities of daily life; Health severely compromised due to pressure ulcers; Infections and pain; Dehydration; Pain and suffering; Loss of dignity; and Loss of enjoyment of life.
The seventh cause of action is labeled "As and For Eighth Cause of Action For Loss Of Consortium". As discussed, supra, the derivative claim has been discontinued.
The bill of particulars for Orzak lists the following injuries: Stage IV pressure ulcer of sacral area; Sepsis; Osteomyelitis; Need for surgical debridement; Need for plastic surgery for wound repair; Deep tissue injuries; Need for intravenous antibiotics; Urinary tract infection; Malnutrition; Inability to perform activities of daily life; Health severely compromised due to pressure ulcers, Infections and pain; Dehydration; Pain and suffering; Loss of dignity; and Loss of enjoyment of life.
The bill of particulars for South Shore lists the following injuries: Stage IV pressure ulcer of sacral area; Sepsis; Osteomyelitis; Need for surgical debridement; Need for plastic surgery for wound repair; Deep tissue injuries; Need for intravenous antibiotics; Urinary tract infection; Malnutrition; Inability to perform activities of daily life; Health severely compromised due to pressure ulcers, Infections and pain; Dehydration; Pain and suffering; Loss of dignity; and Loss of enjoyment of life.
ST. FRANCIS' MOTION FOR SUMMARY JUDGMENT (MOTION SEQ. 003)
In support of its motion, St. Francis submits, inter alia, the pleadings, the deposition transcripts of the parties, medical records, and the expert affidavit of Pamela Reilly, M.S.N., R.N., C.W.O.C.N. After reviewing Nurse Reilly's affidavit, the court finds St. Francis has failed to establish entitlement to summary judgment as a matter of law. The foundation of most of Nurse Reilly's opinions is a speculative statement that the conditions that led to the pressure ulcer began prior to admission at St. Francis, Nurse Reilly opines:
It is my opinion, within a reasonable degree of nursing certainty, that prior to being admitted to St. Francis Hospital
on March 11, 2016, the plaintiffs skin likely sustained an insult, that resulted in a Deep Tissue Injury (DTI) to the sacro-coccygeal (tailbone) and buttock which was not immediately appreciable at the time of admission to St. Francis. A Deep Tissue Injury is not immediately appreciable because the damage occurs deep in the subcutaneous tissue and muscle under intact skin, and evolves from the inside out. (Emphasis added)
Nurse Reilly does not opine as to when this DTI occurred. She does not explain whether it occurred at Orzak, or at Winthrop during or after the back surgery, or before the surgery while Jenkins was at home. This is relevant because, based upon her opinion and the way it is stated, it is possible to argue that every pressure ulcer on every patient was caused by a DTI some time in the past. Further, the affidavit does not address if and how one can determine whether the pressure ulcer, such as the one Jenkins suffered, was caused by a DTI as opposed to inappropriate care. Nurse Reilly does not address whether a pressure ulcer caused by a DU appears any different than one caused by inappropriate care.
Again, if there is no difference between a pressure ulcer caused by a DTI and one caused by a deviation in the standard of care, then it follows logically that Jenkins' pressure ulcer could have been caused by either scenario. Because Nurse Reilly's affidavit is based upon speculation, the motion will be denied regardless of the sufficiency of the opposition papers, regarding malpractice and negligent hiring/supervision.
ORZAK'S MOTION FOR SUMMARY JUDGMENT (MOTION SEQ. 004)
In support of its motion, Orzak submits, inter alia, the pleadings, the transcripts of the parties, medical records, the expert affirmations of Dr. William Mandell, a physician Board Certified in internal medicine and infectious disease, and the expert affidavit of Sarah Lebovits, A.N.P.-B.C., C.W.O.C.N., a Registered Nurse with a specialty in wound, ostomy and continence.
Jenkins had two separate stays at Orzak. The first was from March 8, 2016 to March 11, 2016 (the first stay), and the second was from April 8, 2016 to April 22, 2016 (the second stay). Based upon the medical records and the expert affirmation and affidavit, the court finds that Orzak has established entitlement to summary judgment regarding the allegations of malpractice, violations of the PHL and negligent hiring for the first stay. Jenkins did not suffer a pressure ulcer during that stay, and all other care was within the standard of care. The burden will shift to Jenkins to raise an issue of fact requiring a trial of the action regarding the first stay .
The second stay is more complicated because Jenkins already had the pressure ulcer when he arrived. At admission on April 8, 2016, the pressure ulcer was classified as Stage IV and was measured at 10 x 12 x 4 cm.
According to Dr. Mandell, a Stage IV pressure ulcer is the most severe. He opines that when Jenkins was admitted to Orzak for the second stay, a proper would plan was put into plan, and he states that the medical records support the assertion that the plan was followed. In fact, Jenkins even complained about being unable to sleep because he was turned and positioned every two hours in the middle of the night. Dr. Mandell further opines there was no need to perform a debridement because at all times the wound appeared to be healing and was not infected. According to Dr. Mandell, using a wound vac would have been appropriate, but it is not Orzak's fault that Jenkins' insurance did not initially approve the need for the would vac.
Both Dr. Mandell and Nurse Lebovits opine that Orzak's care was appropriate and claim the records support these opinions because the wound decreased in size during the stay, and that it was never infected. However, on April 21, 2016 at 8:15 p.m., Nurse R. Jadoonanan, noted that Jenkins' temperature was 104.4. Dr. Lee was notified and ordered that Jenkins be transferred to an emergency room. It is undisputed that Jenkins initially refused this transfer. Throughout the night and into the next morning, Jenkins' temperature would fluctuate up and down but was at 102 at 6:45 a.m. Dr. Lee was notified again, and he again ordered Jenkins to be transferred to an emergency room. This time Jenkins did not object, and hes was sent to the emergency department at Franklin Hospital. Upon admission to Franklin Hospital, it was noted that the wound was infected, and that Jenkins was suffering from sepsis.
It is reasonable to argue that Jenkins' initial refusal to be transferred worsened his condition, but both of Orzak's experts gloss over the fact that upon his arrival at Franklin Hospital, the wound was infected and he had sepsis. The experts both point to Jenkins' multiple co-morbidities, including diabetes, as factors that would impact the wound's healing, but there is no explanation or opinion as to the cause of the fever, or how the would became infected, and how he contracted sepsis . Therefore, there is an issue of fact as to whether these conditions were caused by Orzak's care. The court finds that Orzak has failed to establish entitlement to summary judgment as matter of law regarding the second stay.
As for the first, stay, the burden shifts to Jenkins to raise a triable issue of fact. In opposition to the motions, Jenkins relies on the expert affidavits Dr. Angelo T. Scotti, a physician licensed in New Jersey, who is Board Certified in internal medicine and infectious disease, and Nurse Barbara Darlington, RN, BSN, MS, ANP, LNHA, licensed in New Jersey.
The expert affidavits are a legitimate source of contention among the parties. Dr. Scotti's affidavit starts out by stating he is licensed in the state of New York, though this is not true. Both affidavits also failed to have a certificate of conformity annexed to them. It is important to note that these deficiencies were pointed out in Defendants' reply papers, as opposed to Jenkins discovering the errors.
On July 21, 2020, presumably after reading the reply papers, Jenkins' counsel wrote to the court asking for leave to correct the inadvertent error of submitting Dr. Scotti's submission in affirmation form as opposed to affidavit form since he was not licensed in New York. The Defendants all responded by letter objecting to Jenkins' request. The court, believing the error was solely limited to presenting the document in the wrong format, originally allowed the corrected affidavit. However, Defendants' objections made it clear the matter was more complicated that the court originally thought, and after a conference call with the parties, all parties were allowed to submit sur-replies. Jenkins' sur reply was to focus on why he should be allowed to correct the submissions after-the-fact and Defendants were allowed to oppose Jenkins' application.
Dr. Scotti's affirmation has three deficiencies. The first is that the opening sentence wrongly states he is admitted to practice medicine in New York. The second problem is it was submitted in affirmation, and not affidavit form. Third, it did not contain a certificate of conformity. Nurse Darlington's affidavit only has the one deficiency of there being no certificate of conformity.
Jenkins' counsel's explanation as to how these mistakes occurred largely focus on having to work remotely during the pandemic. To be sure, the remote working learning curve has impacted all parties, this court included. But remote working cannot explain Dr. Scotti's errors. The fact that the affirmation was submitted while claiming he was licensed in New York means that both Dr. Scotti and counsel failed to notice the error. Orzak's counsel argues this was intentional and that Dr. Scotti committed perjury. The court strongly disagrees with this overreaction. While it is true the first sentence states he is licensed n New York, the second sentence states he is licensed in New Jersey. It would make no sense to try to trick the court, and everyone else, by lying about being licensed in New York, and then also stating he is licensed in New Jersey. Instead, the court finds the error was the result of carelessness, on both Dr. Scotti's and counsel's part. Had it just been the misstatement of being licensed in New York, or just failing to put it in affidavit form, or just failing to annex a certificate of conformity, the court likely would have overlooked the error. But the three errors together are hard to overlook, thus the court will not consider Dr. Scotti's affidavit, Nurse Darlington's affidavit can be corrected as it was only missing the certificate of conformity. However, after reviewing her affidavit, the court finds that it does not raise an issue of fact regarding the first stay.
SOUTH SHORE'S MOTION FOR SUMMARY JUDGMENT (MOTION SEQ. 005)
South Shore's motion, submitted as a cross motion, was two months late. It is relevant to note that this court extended the period of time to file a note of issue from 90 to 120 days, and then extended the deadline to file summary judgment motions 60 days to March 2, 2020. The case certified ready for trial on July 25, 2019, meaning the parties had eight months from certification to file their motions. South Shore argues the reason for the delay was Jenkins' failure to designate a South Shore witness for deposition. The court rejects this argument for three reasons. First, there is no explanation why counsel did not contact the court as the March 2 deadline was approaching to seek more time.
Second, South Shore's counsel does not explain why a motion precluding Jenkins from deposing a South Shore witness was not filed, perhaps together wth the summary judgment motion, due the Jenkins' failure to designate a witness. Third, Jenkins' alleged failure to designate did not in any way prevent South Shore from having access to its client in order to submit a summary judgment motion. South Shore's counsel could have used an affidavit from any witness it chose, and did not need to wait on a deposition transcript of its own witness after that person was deposed to file a motion. As such, the court will not consider South Shore's motion as it is untimely and good cause has not been shown. (Brill v. City of New York, 2 N.Y.3d 648 [2004]).
Accordingly, it is hereby
ORDERED, that St. Francis' motion for summary judgment (Motion Seq. 003) is DENIED in its entirety; and it is further
ORDERED; that Orzak's motion for summary judgment (Motion Seq. 004) is GRANTED in part, and DENIED in part. It is GRAN TED as related to the first Stay, and is denied in all other respects; and it is further
ORDERED, that South Shore's motion for summary judgment (Motion Seq. 005) is DENIED as untimely. The court has considered the other arguments raised by the parties and finds them without merit. This constitutes the Decision and Order of the Court.