Opinion
No. 106127/2006 Motion Seq. No. 008
09-24-2021
RAGGA ASSAD, AS ADMINISTRATOR AD PROSEQUENDUM OF BISHOY ASSAD, DECEASED, Plaintiff, v. NEW YORK-PRESBYTERIAN HOSPITAL, formerly known as COLUMBIA PRESBYTERIAN MEDICAL CENTER, COLUMBIA PRESBYTERIAN MEDICAL GROUP, GWEN NICHOLS, M.D., SANDRA RUSSO, M.D., MEMORIAL SLOAN-KETTERING CANCER CENTER, and ESPERANZA PAPADOPOULOS, M.D., Defendants.
Unpublished Opinion
MOTION DATE 06/15/2021
DECISION + ORDER ON MOTION
John J. Kelley Judge
The following e-filed documents, listed by NYSCEF document number (Motion 008) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 were read on this motion to/for _REARGUMENT/RECONSIDERATION
In this action to recover damages for medical malpractice and wrongful death, the defendants New York-Presbyterian Hospital, formerly known as Columbia Presbyterian Medical Center, Gwen Nichols, M.D., and Sandra Russo, M.D., together move pursuant to CPLR 2221(d) for leave to reargue that branch of their prior motion seeking summary judgment dismissing the wrongful death causes of action insofar as asserted against them, which had been denied by order dated October 27, 2020 (Madden, J.). The plaintiff opposes the motion. The motion is denied.
With certain exceptions not relevant here, CPLR 2221(a) provides that
"[a] motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it."
Inasmuch as Justice Joan Madden retired after she issued the order under consideration here, but before she could decide the instant reargument motion, she is thus "unable to hear" this motion within the meaning of the statute (see Williams v Georgopoulos, 184 A.D.3d 608, 609 [2d Dept 2020]). In any event, upon reassignment of the action to this court under the rules of the Individual Assignment System, this court is competent to consider and decide the pending motion (see Totaram v Gibson, 179 A.D.3d 451,452 [1st Dept 2020]; Matter of Quattrone v Erie 2-Chautauqua-Cattaraugus Bd. of Coop. Educ. Servs., 148 A.D.3d 1553, 1554 [4th Dept 2017]; C & N Camera & Elecs. v Public Serv. Mut. Ins. Co., 210 A.D.2d 132, 133 [1st Dept 1994]; Billings v Berkshire Mut. Ins., Co., 133 A.D.2d 919, 920 [3d Dept 1987]).
In her October 27, 2020 decision and order, Justice Madden concluded that the movants failed to satisfy their burden of demonstrating, prima facie, that the plaintiffs decedent did not sustain any pecuniary losses sufficient to support a wrongful death cause of action. She also reasoned that, in any event, the plaintiff submitted facts that would have raised a triable issue of fact as to whether her decedent sustained pecuniary losses as a consequence of his death.
The plaintiffs' motion for leave to reargue is denied, inasmuch as the initial motion court did not overlook or misapprehend any facts or relevant law that were presented to it in connection with the prior applications (see CPLR 2221[d] [2]; William P. Pahl Equip. Corp, v Kassis, 182 A.D.2d 22 [1st Dept 1992]). The purpose of a motion to reargue is not "to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided" (Pro Brokerage, Inc. v Home Ins. Co., 99 A.D.2d 971, 971 [1st Dept 1984], quoting Foley v Roche, 68 A.D.2d 558, 567 [1st Dept 1979]).
Accordingly, it is
ORDERED that the motion of the defendants New York-Presbyterian Hospital, formerly known as Columbia Presbyterian Medical Center, Gwen Nichols, M.D., and Sandra Russo, M.D., for leave to reargue is denied.
This constitutes the Decision and Order of the court.