Opinion
No. 015149/12.
03-10-2015
Thomas ROSSI and Debbie Rossi, Plaintiffs, v. Alan J. SCHEINBACH, M.D. and Massapequa Heart Group, Defendants.
Reginald H. Rutishauser, Esq., Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, for Plaintiffs. Kevin E. Way, Esq., Kelly, Rode & Kelly, LLP, Mineola, for Defendants.
Reginald H. Rutishauser, Esq., Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, for Plaintiffs.
Kevin E. Way, Esq., Kelly, Rode & Kelly, LLP, Mineola, for Defendants.
Opinion
RANDY SUE MARBER, J.
Upon the foregoing papers, the motion, pursuant to CPLR § 2221(d), by the Plaintiffs, THOMAS ROSSI and DEBBIE ROSSI, seeking reargument of the Plaintiffs' prior motion which sought an order: (1) vacating the Plaintiffs' default; (2) extending the Plaintiffs' time to file the Note of Issue; (3) deeming the Plaintiffs' Note of Issue filed nunc pro tunc ; and (4) granting any further relief this Court deems just and proper (hereinafter the “Prior Order”), upon the ground that the Prior Order overlooked certain matters of fact and law and, in the event that leave to reargue is granted, that the Prior Motion be granted, is determined as provided herein.
By Order (Marber, J.) dated November 20, 2014, this Court denied the Plaintiffs' motion (Mot.Seq.03) seeking to vacate the Plaintiffs' default, extend the Plaintiffs' time to file the Note of Issue and deem the Plaintiffs' Note of Issue filed nunc pro tunc. In its November 20, 2014 decision, this Court pointed out that the Plaintiffs' earlier Motion, (Mot.Seq.02) which sought to restore this action to the calendar, was treated as a motion to vacate the dismissal of this action. In its June 16, 2014 Decision (on Mot. Seq. 02), this Court explained that such relief was not proper because the action was never on the trial calendar. Accordingly, rather than merely denying the motion outright, the Court treated it as a motion to vacate the dismissal and ruled on the merits.
Specifically, the Court found that the Plaintiffs' counsel's Affirmation was legally insufficient to establish a meritorious cause of action because it did not include a probative affidavit of a medical expert. Further, this Court found that the Plaintiffs' counsel failed to provide a reasonable excuse for failing to timely file the Note of Issue. The Court found that the Plaintiffs' attorney's affirmation submitted that the excuse for not timely filing the Note of Issue was because they were waiting to see if the Defendants were going to pursue non-party discovery. In the Court's decision, it was pointed out that the Plaintiffs' counsel did not cite law office failure as the excuse for failing to file the Note of Issue. Even if it did, the June 16, 2014 decision clearly stated that the excuse was conclusory and perfunctory and did not constitute a reasonable excuse.
In its November 20, 2014 Decision, this Court held that, “insomuch as the Court has already ruled on the Plaintiffs' request to vacate the dismissal, the instant application should have been brought pursuant to CPLR § 2221.” Accordingly, the Court denied the Plaintiffs' motion.
In the instant motion, brought pursuant to CPLR § 2221, the Plaintiffs seek to reargue the Prior Motion, which was denied by the Court's Order dated November 20, 2014 and entered on November 21, 2014. In support of their motion, the Plaintiffs argue that, “the Court's decision overlooked certain facts and points of law in rendering the Prior Order.” Specifically, the Plaintiffs argue that the Notice of Motion (Mot.Seq.03) included a request for “other and further relief” which could have been granted and that the Court was not asked to decide the same motion twice because their first motion (Mot.Seq.02) was a motion to restore, not a motion to vacate, since there was no express order of dismissal at the time of the motion.
The Plaintiffs further argue that the Court overlooked points of law, including but not limited to, CPLR § 205(a), pursuant to an amendment effective July 7, 2008 and as explained in Cadichon v. Facelle, 18 NY3d 230, 236 [2011]. The Plaintiffs point the Court's attention to their appellate brief for a more complete statement of their points for reargument.
In their appellate brief, the Plaintiffs contend that, pursuant to CPLR § 205(a) as amended effective July 7, 2008, the legislature prohibited “deemed dismissals” pursuant to certification orders and “ministerial dismissals” by the clerk pursuant to pre-printed forms with check boxes as was done in this case.
The Plaintiffs argue that in its Short Form Order dated June 16, 2014, the Court erred by relying on the Certification Order as a legally sufficient 90–day notice and violated CPLR § 205(a) by not setting forth on the record specific conduct showing a general pattern of delay in the litigation. The Plaintiffs contend that this Court and the Nassau County Clerk's office had a general policy of illegally dismissing cases in direct contravention of CPLR § 205(a).
The Plaintiffs rely on Cadichon and argue that in that decision the Court of Appeals held that, “deemed dismissals for alleged want of prosecution under CPLR § 3216 following certification orders, of the type that the Court relied upon in the case at bar, are expressly prohibited under CPLR 205(a) and have been illegal for about the past six years.
The Plaintiffs further argue that the Court erred in rejecting the Plaintiffs' counsel's excuse for the delay in filing the Note of Issue. The Plaintiffs contend that the Court erroneously rejected its reason that it was delayed due to the Defendants' service of additional discovery demands during the 90–day time period to file the Note of Issue. The Plaintiffs' counsel contends that the Court imposed its own “overly harsh view” of what constitutes a reasonable excuse.
The Plaintiffs also argue that the Court erred in rejecting the Plaintiffs' counsel's demonstration of a meritorious cause of action. The Plaintiffs argue that their counsel's affirmation, certificate of merit, complaint, certificate of merit pursuant to CPLR 3012(a) and the Verified Bill of Particulars were sufficient to show a meritorious cause of action and that the Court erred in requiring a medical expert affidavit.
The Plaintiffs further argue that the Court's dismissal of the action based on the de minimus delay in filing the Note of Issue was an abuse of discretion.
With regard to the Court's Order, dated November 20, 2014, denying the Plaintiffs' motion (Mot.Seq.03), the Plaintiffs argue that: (1) it violated CPLR § 205(a), by dismissing the case without setting forth on the record specific conduct constituting a general pattern of delay in prosecution of the case; (2) the Court was not constrained to deny the motion; (3) the Court failed to consider further details constituting sufficient excuse for their de minimus delay in filing the Note of Issue; and (4) the Court failed to consider the Affidavit of Peter Selwyn, M.D., which was presented in support of the motion (Mot.Seq.03) to show a meritorious cause of action.
In opposition to the Plaintiffs' motion to reargue, the Defendants argue that the Plaintiffs' motion is a continued misinterpretation and misrepresentation of procedural and substantive law in the State of New York. The Defendants argue that the present application to reargue, which really seeks a first-time judicial review of what was a renewal application of the first motion, still fails to show why the facts regarding “law office failure” and the physician's affidavit of merit were not presented in the first motion, which is required by CPLR § 2221.
The Defendants contend that even if the Court were to grant reargument, there are numerous grounds for denying the underlying motion. The Defendants contend that the case was dismissed as a result of the Plaintiffs' failure to abide by a succinct provision of the Certification Order, which was signed by all parties. The Defendants argue that the Plaintiffs misinterpret the specific terms of CPLR § 3216 and that Cadichon, which the Plaintiffs heavily rely on, was a sharply divided Court of Appeals decision, whereby the majority's decision was based on a different set of facts than in the present case.
In Cadichon, the Certification Order indicated that the failure to file the Note of Issue within 90 days “will serve as a basis for the Court, on its own motion, to dismiss the action for unreasonably neglecting to proceed.” The Defendants argue that cases in this judicial department have upheld dismissals based on failure to comply with a Certification Order bearing different language that reads: “This matter is hereby certified for trial and plaintiff(s) is directed to file a note of issue within 90 days. If plaintiff does not file a note of issue within 90 days this action is deemed dismissed without further order of the Court. (CPLR 3216 ).” The Defendants argue that the cases cited by the Plaintiffs do not stand for the propositions claimed in the Plaintiffs' counsel's affirmation in support.
Furthermore, the Defendants contend that the Plaintiffs have failed to establish a reasonable excuse for failing to comply with the Certification Order. The Defendants argue that the Plaintiffs now set forth new arguments regarding why they did not comply with the 90 day requirement to have filed the Note of Issue, including, that the handling attorney did not appreciate the terms of the Certification Order and that the alleged diary entry inadvertently stated they were to serve, not file, the Note of Issue by May 8, 2014. The Defendants counsel argues that to the extent that the Plaintiffs' counsel claims law office failure, the attorney's malfeasance in misreading the order is not law office failure, and as such, does not constitute a reasonable excuse.
The Defendants counsel further argues that the Plaintiffs have failed to submit evidentiary proof to show a meritorious action. The Defendants argue, as they did in the underlying motion, that the physician's Affidavit of Merit, submitted by the Plaintiffs, consists of two conclusory paragraphs regarding alleged departures and proximate cause without any foundation whatsoever. The Defendants argue that the Affidavit is conclusory as to liability and causation and is legally insufficient.
Finally, the Defendants' counsel argues that should the Court grant reargument, the sole issue concerns whether the Plaintiffs satisfied their burden to vacate the dismissal and because they did not establish a reasonable excuse and a meritorious cause of action, they failed to meet such burden.
In Reply, the Plaintiffs' counsel argues that the Defendants do not deny that the Order of November 20, 2014, overlooked the facts and law relative to CPLR § 205(a). The Plaintiffs' counsel further argues that it cannot be denied that the Court “overlooked the fact that the Plaintiffs requested other and further relief.” The Plaintiffs' counsel further contends that the Defendants' counsel does not deny that the Court overlooked that fact that this case involves a mere 3 days of non-prejudicial delay and there was no general pattern of delay in proceeding with this litigation.
The Plaintiffs' counsel argues that the legislative amendment to CPLR § 205(a) in 2008 prohibited any purported anticipatory “deemed dismissal” of a case prior to default and restricted judicial discretion in cases of dismissal under CPLR § 3216.
He argues that other points of law were overlooked, including: that minimal delay in filing a Note of Issue due to issuance of additional discovery demands is excusable as a matter of law; a Verified Bill of Particulars is sufficient to demonstrate merit for purposes of restoring a case dismissed for want of prosecution; and, that it is error to dismiss for want of prosecution based on de minimus delay.
The Plaintiffs' counsel further argues that their two motions were not the same and the Court was not constrained to deny the motion without reaching the merits. He contends that the Defendants argue in favor of an erroneous legal standard regarding a showing of a meritorious action and that the physician's Affidavit submitted is sufficient to meet the legal requirements of restoring a case dismissed for want of prosecution.
The Plaintiffs' counsel further argues that the Defendants' opposition does not deny that CPLR 205(a), effective July 7, 2008, and the holding in Cadichon did away with any dismissal for want of prosecution under CPLR § 3216 where there is no express judicial statement on the record of specific conduct constituting a general pattern of delay in the litigation.
The Plaintiffs' application to reargue its prior motion (Mot.Seq.03), which was denied by an Order dated November 20, 2014, is defective and must be denied. The Plaintiffs' arguments that the Court was not constrained by CPLR § 2221 to deny the motion and that “the lower court was given an opportunity to rectify the matter” because they included a request for “any further relief that this Court deems just and proper” are without merit.Despite the Plaintiffs' counsel's baseless assertions, the Court was, in fact, constrained to deny the Plaintiffs' motion. The Plaintiffs' motion (Mot.Seq.03) requested relief that was already sought and denied in their previous application (Mot.Seq.02) to this Court.
In their initial motion (Mot.Seq.02), the Plaintiffs improperly labeled their motion a motion to restore the action to the calendar, when in reality the action was never on the trial calendar. Rather than dismissing the Plaintiffs' motion outright due to a technical defect, the Court treated the motion as one to vacate the dismissal, because despite the Plaintiffs' labeling the motion as a motion to restore to the calendar, they were actually seeking to vacate the dismissal. As such, the Court denied the Plaintiffs' motion on the merits. The Plaintiffs then made the underlying motion (Mot.Seq.03) to vacate their default, extend their time to file the Note of Issue, to deem the Note of Issue filed nunc pro tunc; and, any further relief that this Court deems just and proper. The Plaintiffs sought the same relief they sought in their prior motion (Mot.Seq.02), which was decided by Order dated June 16, 2014, while attempting to submit additional support. Thus, the Plaintiffs attempted to make the same motion twice.
Insomuch that a party cannot make the same motion, seeking identical relief, more than once in the same action, the motion could only have been brought pursuant to CPLR § 2221. Since the Plaintiffs did not bring their motion pursuant to CPLR § 2221, the Court denied the motion.
However, even if the Court were to grant the Plaintiffs' motion to reargue, the motion would be denied because, even with the additional evidence presented, the Plaintiffs' counsel still failed to establish a reasonable excuse for failing to timely file, or move to extend their time to file, the Note of Issue and establish a meritorious cause of action.
It is settled that motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision. (See generally, Grimm v. Bailey, 105 AD3d 703 [2d Dept.2013] ; Frenchman v. Lynch, 97 AD3d 632, 633 [2d Dept.2012] ; Anthony J. Carter, DDS, P.C. v. Carter, 81 AD3d 819, 820 [2d Dept.2011] ; Hill v. New York City Transit Authority, 68 AD3d 866, 867 [2d Dept.2009] ; CPLR § 2221[d][2] ) However, the remedy “is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented.” (McGill v. Goldman, 261 A.D.2d 593, 594 [2d Dept.1999] ((See also Foley v. Roche, 68 A.D.2d 558, 567 [1st Dept.1979] ; Haque v. Daddazio, 84 AD3d 940, 942 [2d Dept.2011] ; Mazinov v. Rella, 79 AD3d 979, 980 [2d Dept.2010] ; V. Veeraswamy Realty v. Yenom Corp., 71 AD3d 874 [2d Dept.2010] )
The Plaintiffs' motion relies heavily on the legislative amendment to CPLR § 205(a), effective July 7, 2008, and the Court of Appeals decision in Cadichon. CPLR § 205(a) states: “where a dismissal is one for neglect to prosecute the action made pursuant to rule 3216 of this chapter or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.”
In Cadichon, a 4–3 decision by the Court of Appeals reversed the Appellate Division and reinstated the plaintiffs' complaint. The Court of Appeals relied on the stipulation executed by the trial court and the parties, which directed counsel for the Plaintiff to file the Note of Issue within 90 days and that pursuant to CPLR § 3216, failure to comply within 90 days will serve as a basis for the court, on its own motion, to dismiss the action. The court noted that there was no order of the court dismissing the case, but only a ministerial dismissal without the benefit of further judicial review, despite what the stipulation provided. The Court of Appeals further stated that CPLR 205(a) was inapplicable to the case.
Despite the Plaintiffs' assertion that the facts in Cadichon are similar to the facts in the instant case, that is incorrect. In fact, the holding in Cadichon is based on the specific language set forth in the stipulation, which is in sharp contrast to the language set forth in the Certification Order herein. In Cadichon, the key language was “your default in complying with this demand within the 90–day period will serve as a basis for the court, on its own motion, to dismiss the action for unreasonably neglecting to proceed.” In this case, the Certification Order states: “If plaintiff does not file a note of issue within 90 days, this action is deemed dismissed without further order of the Court. (CPLR 3216 )” Based on the stark contrast in the language between the stipulation in Cadichon and the Certification Order in this case, the holding in Cadichon is not applicable to the case at bar.
Also, the Plaintiffs fail to acknowledge the line of post-Cadichon cases decided by the Appellate Division, Second Department, which all held that a certification order directing a plaintiff to file a note of issue within 90 days, and warning that the complaint would be deemed dismissed without further order of the Supreme Court if the plaintiff failed to comply with that directive, had the same effect as a valid 90–day notice pursuant to CPLR 3216. (See Byers v. Winthrop University Hosp., 100 AD3d 817 [2d Dept.2012] ; King v. Dobriner, 106 AD3d 1053 [2d Dept.2013] ; Stallone v. Richard, 95 AD3d 875 [2d Dept.2012] ) The Plaintiffs' argument that “the lower court justice and the Nassau County Clerk's Office” have a general policy of illegally dismissing cases, completely ignores the established pertinent appellate case law, which states that such dismissal is proper.
In addition to the Plaintiffs' misplaced reliance on CPLR § 205(a) and Cadichon, they also failed to meet the requirements to vacate a dismissal for failing to file the Note of Issue. The defaulting party must demonstrate that they had a reasonable excuse for the default, that they have a meritorious cause of action, that the default was not willful and that the non-defaulting party will not be prejudiced. (Lichtman v. Sears, Roebuck & Co., 236 A.D.2d 373 [2d Dept.1997] )
The Plaintiffs' counsel stated in his Affirmation that his delay in filing the Note of Issue was due to his adversary serving additional party and non-party discovery demands during the 90–day period. However, he does not explain or provide any legal support as to why such discovery demands would prevent him from filing the Note of Issue or moving to extend their time to file the Note of Issue. Furthermore, prior to the actual deadline for filing the Note of Issue, the Plaintiffs' counsel was advised by the Defendants' counsel that the entity (Seaford Chemists) of which a non-party EBT was sought was no longer in business. The Defendants' counsel asked for copies of any records in the Plaintiffs' attorney's possession.
The Plaintiffs' counsel also ignores the arguments raised in his Affirmation in Support of the underlying motion (Mot.Seq.03), where he argued that he did not recognize or understand that the Certification Order constituted a 90–day notice and that due to “law office failure” it was improperly calendared to serve the Note of Issue by May 8, 2014 and was not noted to file by such date.
While a court has discretion to excuse a default based upon law office failure pursuant to CPLR § 2005, it should not routinely excuse defaults, especially where no mitigating factors have been set forth. (Midolo v. Horner, 131 A.D.2d 825 [2d Dept.1987] ) “Although the court has the discretion to accept law office failure as a reasonable excuse, a claim of law office failure should be supported by a detailed and credible explanation of the default at issue”. (Lugauer v. Forest City Ratner Co., 44 AD3d 829 [2nd Dept.2007] )
The Plaintiffs' counsel failed to elaborate on his excuse of “law office failure” in the instant motion and merely relies on the excuse that his adversary served additional discovery demands during the 90–day period. This does not constitute a reasonable excuse.
Further, the Plaintiffs' counsel failed to set forth a meritorious cause of action. In the Plaintiffs' first application (Mot.Seq.02), they merely provided an attorney affirmation, which is insufficient to establish a meritorious defense in a medical malpractice action. (King v. Dobriner, 106 AD3d 1053 [2d Dept.2013] ) (plaintiff failed to provide in her initial moving papers an affidavit of merit of a medical expert competent to attest to a meritorious cause of action alleging medical malpractice) In the Plaintiffs' second motion (Mot.Seq.03), they set forth an Affidavit of Merit of Dr. Andrew Peter Selewyn.
In a medical malpractice action, to establish a meritorious cause of action, the plaintiff must submit an affidavit of a medical expert setting forth that expert's opinion that the defendant did not, in fact, follow good and accepted medical practice. (Sturgess v. Zelman, 15 Misc.3d 487 [NY Sup.Ct.2007] ) “An affidavit of a medical expert stating an opinion that defendant was negligent and that negligence harmed plaintiff, when accompanied by the specific factors used as the basis of that opinion, is sufficient.” (Id. ) Here, the Plaintiffs' expert Affidavit of Merit does not explain the basis of Dr. Selwyn's opinion and merely provides a conclusory statement as to proximate cause. Accordingly, without taking into account that the Plaintiffs failed to submit the requisite expert medical affidavit with their first application (Mot .Seq.02), the Affidavit of Merit submitted with their second application (Mot.Seq.03) is insufficient to establish a meritorious cause of action.
Accordingly, it is hereby
ORDERED, that this motion brought pursuant to CPLR § 2221 by the Plaintiffs seeking an Order granting leave to reargue the Plaintiffs' prior motion for an Order: (1) vacating the Plaintiffs' default; (2) extending the Plaintiffs' time to file the Note of Issue; (3) deeming the Plaintiffs' Note of Issue filed nunc pro tunc; and (4) granting any further relief this Court deems just and proper, is DENIED.
This constitutes the decision and order of this court.