Opinion
No. 27364/08.
2010-08-30
Andre WRIGHT, Plaintiff, v. Lawrence STAM, M.D., Susan Gordon, M.D., Laurence Peter Mark, M.D., Pawan Bhatnagar, M.D., William Schiff, M.D., New York Presbyterian Hospital, Columbia University Medical Center, Defendants.
Brand Brand Nomberg Rosenbaum LLP, for Plaintiff. Stam–Peltz & Walker, for Defendant.
Brand Brand Nomberg Rosenbaum LLP, for Plaintiff. Stam–Peltz & Walker, for Defendant.
Martin, Clearwater & Bell, LLP, for Defendants, Gordon, Schiff, N.Y. Presbyterian Hosp. and Columbia Univ. Med. Ctr.
MarkDwyer & Taglia, for Defendant.
GLORIA M. DABIRI, J.
By Notice of Motion plaintiff Andre Wright, by his attorneys, seeks (a), pursuant to CPLR 2221(f) and (d), renewal and reargument of the motion of defendant Laurence Peter Mark, M.D. which sought the appointment of a guardian ad litem for the plaintiff, and of the cross-motion of plaintiff which, effectively, opposed the motion; (b) an order, pursuant to CPLR 1201, appointing plaintiff's brother, Dennis Hines, as guardian ad litem for plaintiff for the subject litigation; and (c) an order vacating so much of the court's order of March 11, 2010 as directed the examination of plaintiff by Dr. David A. Klein and, alternatively, appointing a psychiatrist who does not have a social relationship with an attorney for the defendants.
Defendants Laurence Mark, M.D. and Lawrence Stam, M.D. each supply affirmations in opposition to the motion.
By cross-motion, defendants Susan Gordon, C.R.N.A. s/h/a Susan Gordon, M.D., William M. Schiff, M.D., Pawan Bhatnagar, M.D. and New York–Presbyterian Hospital oppose plaintiff's motion, and cross-move for (a) an order, pursuant to General Obligation Law § 5–1510(2)(a), (b) and (c), ordering a hearing to determine the validity of the November 26, 2007 and May 21, 2008 powers of attorney granted by plaintiff Andre Wright to Dennis Hines; (b) an order, pursuant to CPLR 3126(3), striking the complaint for willful disregard of the court's March 11, 2010 order directing that plaintiff appear for a psychiatric evaluation; and (c) an order, pursuant to CPLR 3126 and 22 NYCRR 1301.1, awarding costs and sanctions against plaintiff, or alternatively, pursuant to CPLR 3124, compelling plaintiff to appear for an evaluation by a date certain.
Plaintiff supplies an affirmation in opposition to the cross-motion and in reply to his motion.
The cross-movants supply an affirmation in reply.
Background
Plaintiff commenced this action for medical malpractice with the filing of a summons and verified complaint on October 2, 2008. Issue was joined by Doctors Stam and Mark on or about November 19, 2008. New York–Presbyterian Hospital and Doctors Gordon and Schiff interposed answers on or about November 20, 2008. Issue was joined on or about February 25, 2009 by Dr. Bhatnagar.
Plaintiff alleges that he sustained a cerebral stroke, resulting in brain damage, cognitive deficits, paralysis, left-eye blindness and other injuries due to the defendants' malpractice in connection with surgery performed at Presbyterian Hospital on September 3, 2007 to repair a detached retina. It is alleged that the failure of the defendants to obtain medical clearance prior to performing the surgery under general anesthesia lead plaintiff to suffer a stroke. The named defendants include Dr. William Schiff a retinal specialist, Dr. Mark an anesthesiologist, Susan Gordon, C.R.N.A. a nurse anesthetist, and Dr. Pawan Bhatnagar an ophthalmology resident.
By so-ordered stipulation of July 7, 2009 plaintiff's claims against Columbia Ophthalmology Consultants, Inc. were withdrawn.
On July 8, 2009 the parties entered into a preliminary conference order. On September 3, 2009, Dr. Mark executed a consent to change counsel.
By letter of September 2, 2009 plaintiff's counsel notified counsel for the defendants that “pursuant to CPLR 3113(b) and 22 NYCRR § 202.15, the deposition of the plaintiff would be videotaped.”
By Order to Show Cause the defendants sought a protective order, pursuant to CPLR 3101, preventing the videotaping, and plaintiff moved to compel discovery. In its order of November 13, 2009 the court granted plaintiff's motion to the extent of directing Gordon, Bhatnagar, Presbyterian Hospital and Schiff to provide amended bills of particulars with respect to their affirmative defenses and to specify insurance coverage. Plaintiff also was directed to produce discovery requested by Dr. Mark.
By Order of November 17, 2009 the court denied the defendants' application for a protective order. In doing so, it noted that plaintiff suffers receptive and expressive aphasia, and stated that while “[n]either section 202.15 nor CPLR 3113 require a showing of special need ... here a video deposition of plaintiff would be of some value.” Thereafter, the parties commenced a videotaped and stenographic deposition of the plaintiff on January 28, 2010 at the nursing home in which plaintiff resides.
By Order to Show Cause of February 4, 2010 defendant Mark sought to stay continuation of that deposition, additional discovery, and a determination as to whether the plaintiff lacked mental competency and, thus, required the appointment of a guardian ad litem.
By Notice of Cross–Motion plaintiff opposed the Order to Show Cause and requested an order, pursuant to CPLR 3126, striking the Answer of Dr. Mark for failure to provide discovery. In opposing a hearing and the appointment of a guardian ad litem, counsel for plaintiff maintained that a video deposition of plaintiff Andre White makes “readily apparent ... that Mr. Wright is competent to commence both legal proceedings and to testify” (February 11, 2010 Affirm. of Brett J. Nomberg, ¶ 7). Counsel argued that the movant's position that “because a stroke victim [Mr. Wright] has memory problems or speech difficulties that he is mentally incompetent, ... demonstrates [failure by the movant] to consult with any medical professional” (Feb. 11, 2010 Affirm. of Brett J. Nomberg ¶ 24). Plaintiff's counsel offered that “Mr. Wright, like many other stroke victims suffers expressive aphasia and thus cannot always communicate his thoughts. However, this does not equate with mental incapacity” (Nomberg Affirm. ¶ 34).
Finally counsel for plaintiff argued that “[e]ven if Mr. Wright was incoherent and unable to answer questions at the deposition” the Durable Power of Attorney assigned to his brother Dennis Hines is sufficient to protect Mr. Wright's legal rights (Nomberg Affirm. ¶¶ 26, 29).
In an affirmation of February 18, 2010, in opposition to the Presbyterian Hospital defendants' (Drs. Gordon, Schiff and Bhatnagar) cross-motion, and in further support of his motion, counsel for the plaintiff noted that the cross-motion is not accompanied by a doctor's affirmation explaining the significance of the plaintiff's medical history. He pointed out that on February 1, 2008 a physician explained the benefits and alternatives to, and risks and nature of, a medical procedure to the plaintiff, all of which plaintiff understood, as noted in his medical records.
In its decision and order of March 11, 2010, entered March 31, 2010, the court granted the motion of Dr. Mark to the extent of ordering an independent psychiatric evaluation of plaintiff by Dr. James J. Lynch, M.D. and thereafter a hearing to determine whether plaintiff was in need of a guardian ad litem. The plaintiff's cross-motion was denied.
Thereafter, plaintiff's counsel appealed from the March 11, 2010 order and sought to stay enforcement of the order pending a decision on appeal. On April 29, 2010 the Appellate Division, Second Department stayed that portion of the order as “directed the production of authorizations pursuant to Arons v. Jutkowitz (9 NY3d 393)”, and otherwise denied the motion.
On June 4, 2010 at a conference before the court the attorneys for the parties agreed that Dr. David Abraham Klein would conduct the evaluation of plaintiff if an evaluation was to be performed. Thereafter, by order of that date, the court's Decision and Order of March 11, 2010 was amended to the extent that Dr. David A. Klein was appointed in place of James J. Lynch, M.D.
As movant points out, all correspondence relating to Mr. Taglia's encounters with Dr. Lynch was exchanged with the attorneys, providing each with opportunities for comment and to voice their concern, if any, about Dr. Lynch's appointment.
Following his examination of plaintiff, Dr. Klein, in correspondence of July 2, 2010, advised the court that in order to reach a conclusion with great medical certainty as to Mr. Wright's ability to aid or participate in his malpractice case, a “cognitive-linguistic evaluation” of Mr. Wright by a “state licensed speech language pathologist” “who is facile with an adult/geriatric/post-stroke population” is required. Dr. Klein indicated that such an evaluation “would render crucial information in determining Mr. Wright's ability to integrate information” and “make decision[s].”
Discussion
Motion to Renew/Reargue
CPLR 2221(f) provides that a “combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought.” To the extent that the plaintiff seeks reargument of the prior motions, he alleges no “fact or law allegedly overlooked or misapprehended by the court in determining the prior motion” (CPLR 2221[d][2]; Diorio v. City of New York, 202 A.D.2d 625, 626 [1994] ).
With respect to that portion of the motion as may seek renewal, plaintiff supplies the May 10, 2010 affidavit of Dennis Hines of Brooklyn, New York who affirms that he is the brother of the plaintiff Andre Wright, that he is employed as an elevator mechanic for the New York City Housing Authority, that he was appointed by his brother a durable power of attorney over his affairs, and that he “consents to being appointed guardian ad litem for the above-captioned matter.”
“[T]he requirement that a motion for leave to renew be based upon newly-discovered facts is a flexible one and a court, in its discretion, may grant renewal upon facts known to the moving party at the time of the original motion' (Gadson v. New York City Hous. Auth., 263 A.D.2d 464, 691 N.Y.S.2d 914 [1999];see Allison v. D'Agostino Supermarkets, 282 A.D.2d 219, 723 N.Y.S.2d 30 [2001];Daniel Perla Assoc. v. Ginsberg, 256 A.D.2d 303, 681 N.Y.S.2d 316 [1998] )” (Lawman v. Gap, Inc., 38 AD3d 852, 853 [2007] ). Accordingly, renewal is granted. However, the application is premature as a hearing is first required to determine whether Mr. Wright is in need of a guardian ad litem (Tingling v. C.I.N.H.R., Inc., 74 AD3d 954 [2010] ).
That portion of the motion to renew which seeks to replace Dr. James Lynch is denied as moot.
Cross–Motion
Defendants Susan Gordon, C.R.N.A., Pawan Bhatnagar, M.D. and New York–Presbyterian Hospital, effectively, argue that the hearing ordered pursuant CPLR 1201 should be expanded to include a hearing pursuant to General Obligation Law § 15–1510–(2) to test the validity of the powers of attorney executed by plaintiff. Cross-movants point out that both powers of attorney were executed following the September 2007 stroke at issue which, it is alleged, left plaintiff with “cognitive disabilities, memory difficulties, and speech aphasia”, and totally dependent upon others for his “personal health and living needs,” (May 10, 2010 Aff. of Bret J. Nomberg, ¶¶ 11, 33), and after he had sustained a subarahnoid hemorrhage with intracranial bleeding in a fall.The record reveals that on November 26, 2007 and May 21, 2008, plaintiff, Andre Wright executed durable powers of attorney to his brother Dennis Hines. The “Durable General Power of Attorney” of May 2006 is a New York Statutory Short Form. It specifically “revokes all prior Powers of Attorney” and grants authority for each of the matters listed, including “Claims and Litigation” ( seeGen. Oblig. Law §§ 5–1502H; 5–1502–J).
A “power of attorney” is defined by General Obligations Law, section 5–1501, as a document “by which a principal with capacity designates an agent to act on his or her behalf.” “Capacity” is defined as the “ability to comprehend the nature consequences of the act of executing and granting, revoking, amending or modifying a power of attorney, any provision in a power of attorney, or the authority of any person to act as agent under a power of attorney” (Gen. Oblig. Law § 5–1501[3] and [10]; see Stackrow v. New York Property Ins. Underwriter's, 115 A.D.2d 883, 885 [1985], citing McCarthy v. Volkswagen of America, 55 N.Y.2d 543, 548 [1980] ).
If the plaintiff lacked the capacity when he signed the powers of attorney to understand and comprehend the nature of the transaction, (Aldrich v. Bailey, 132 N.Y. 85, 89 [1892] ), or was “unable to control his conduct,” (Ortelere v. Teachers' Retirement Board of the City of New York, 25 N.Y.2d 196, 203 [1969];In re Will of Walther, 6 N.Y.2d 49, 53–54 [1959], citing Children's Aid Society of the City of New York v. Loveridge, 70 N.Y. 387, 394–395 [1877] ), then the power of attorney is void.
Proceedings to test the validity of powers of attorney are provided for by Section 5–1510 of the General Obligations law which states in relevant part as follows:
“2. A special proceeding may be commenced pursuant to this section for any of the following additional purposes:
(a) to determine whether the power of attorney is valid;
(b) to determine whether the principal had capacity at the time the power of attorney was executed;
(c) to determine whether the power of attorney was procured through duress, fraud or undue influence;
(d) to determine whether the agent is entitled to receive compensation or whether the compensation received by the agent is reasonable for the responsibilities performed;
(e) to approve the record of all receipts, disbursements and transactions entered into by the agent on behalf of the principal;
(f) to remove the agent upon the grounds that the agent has violated, or is unfit, unable, or unwilling to perform, the fiduciary duties under the power of attorney;
(g) to determine how multiple agents must act;
(h) to construe any provision of a power of attorney;
(i) to compel acceptance of the power of attorney in which event the relief to be granted is limited to an order compelling acceptance.
* * * *
3. A special proceeding may be commenced pursuant to subdivision two of this section by any person identified in subparagraph three of paragraph (a) of subdivision two of section 5–10505 of this title, the agent, the spouse, child or parent of the principal, the principal's successor in interest, or any third party who may be required to accept a power of attorney.” [emphasis supplied]
The statute does not limit the persons who may commence a special proceeding to determine whether the principal had capacity to execute the power of attorney, or to commerce a proceeding to determine capacity for any of the other purposes set forth in subdivision 2 of section 5–1510 ( see Bailly and Hancock, Practice Commentaries, McKinney's Cons.Laws of NY, Book 23A; Gen. Obl. Law 5–1510). In this regard, subdivision 3 of section 5–1510, makes clear that a special proceeding may be commenced by “any third party who may be required to accept a power of attorney.”
However, expanding the CPLR 1201 hearing to include one to determine capacity under General Obligations Law 5–1510 is not warranted in these circumstances. The determination as to whether Mr. Wright currently is in need of a guardian ad litem and as to whether the powers of attorney comply with the General Obligation Law are distinct and separate matters. While information regarding Mr. Wright's capacity, developed in the guardianship proceeding, may be of value in a subsequent proceeding pursuant to section 5–1510 of the General Obligation Law, a determination that he is in need of a guardian ad litem will not preclude a finding that he lacked the “capacity” to execute either power of attorney. Similarly, a determination that no guardian ad litem is required will not preclude a subsequent invalidation of one or both of the powers of attorneys upon one or more of the grounds set forth in section 5–1510(2) of the General Obligations Law. Thus, a § 5–1510 hearing is premature and would unnecessarily, and without sufficient cause, overly expand the scope of the guardian ad litem proceeding. The cross-movants' remaining requests are denied. Accordingly, it is
ORDERED, that the motion [MS No.8] is granted to the extent that leave to renew is granted and upon renewal the court adheres to its decision and Order of March 11, 2010; and it is further
ORDERED, that the cross-motion [MS # 9] is denied without prejudice; and it is further
ORDERED, that Elaina Kabzan–Vaynman, M.S., CCC/SLP of 2760 Whitman Drive, Brooklyn, N.Y. 11234, is appointed to evaluate Andre Wright's present ability to adequately communicate his wishes and aide in the prosecution of this action and, thereafter, to report her findings to Dr. David Abraham Klein and to the Court on or before the 30th day of November 2010 and that the contents and findings of her report be maintained confidential unless so ordered by this Court; and it is further
ORDERED, that payment to Elaina Kabzan–Vaynman for her services shall be determined by the Court upon the submission of an Affidavit of Services rendered, and the costs so determined shall be borne equally by the defendants; and it is further
ORDERED, that any of Andre Wright's medical records be made available for inspection by Ms. Kabzan–Vaynman, upon request, and all records shall be maintained in confidence and not divulged unless so ordered by the Court.