Opinion
114682/01.
Decided May 5, 2006.
Defendants Charles Miller, M.D. ("Dr. Miller"), Patricia Sheiner, M.D. ("Dr. Sheiner"), Leona Kim-Schluger, M.D. ("Dr. Kim-Schluger"), Thomas Fishbein, M.D. ("Dr. Fishbein"), Cecilia David, R.N. ("Nurse David"), Eugene Fine, M.D. ("Dr. Fine") and Mount Sinai Hospital ("Mount Sinai") (collectively "the Moving Defendants") move to: amend the caption to remove those named individuals who were never served; dismiss all claims made against those defendants from whom plaintiff has failed to seek or obtain discovery; and, preclude plaintiff from offering expert testimony for his failure to comply with CPLR 3101(d). Plaintiff Jack Einheber ("Mr. Einheber") opposes the motion and cross-moves for a default judgment against Franklin Klion, M.D. ("Dr. Klion"), Sheldon Glabman, M.D. ("Dr. Glabman"), Anthony Squire, M.D. ("Dr. Squire") and Dr. Kelly. The Moving Defendants oppose the cross-motion.
On February 28, 2006, plaintiff stipulated to discontinue with prejudice his claims against Henry Bodenheimer, M.D. ("Dr. Bodenheimer"), Sukru Emre, M.D. ("Dr. Emre"), Dr. Ben-Haim, M.D. ("Dr. Ben-Haim"), Alexander Kirschenbaum, M.D. ("Dr. Kirschenbaum"), Dr. Sutton, and all "unknown name" parties and "Does." Therefore, they are no longer parties to this action. Additionally, plaintiff agreed to amend the caption to delete the discontinued defendants and to consolidate Mt. Sinai Surgical Associates, Mt. Sinai Urological Associates, Mt. Sinai School of Medicine Renal Diseases and Nephrology Associates, Mt. Sinai School of Medicine Cardiology Associates, Mt. Sinai School of Medicine Liver Diseases and Hepatology and Mt. Sinai Medical Center under the name "The Mount Sinai Hospital." The Court signed the stipulation on March 10, 2006.
Background
On May 9, 1996, Mr. Einheber then forty-seven years-old presented at Mount Sinai suffering from end-stage liver disease. On February 1, 1999, Dr. Fishbein performed a liver transplant on Mr. Einheber. His body began rejecting the liver on or about February 17, 1999.
In this medical malpractice action commenced in 2001, Mr. Einheber claims that defendants negligently failed to: treat his osteopenia, osteoporosis and thyroid condition; adequately staff the transplant operation with two major surgeons; properly monitor the wound after surgery; and timely remove his stent.
On October 10 and 11, 2002, an unnamed individual dropped off several summons packets with a security guard at Mount Sinai. The security guard signed four sheets of paper, each of which stated "Received one packet." Opp., Ex. 3, at 1-4. On October 11, 2002, Dr. Fine wrote in Mr. Einheber's medical chart that he received the summons. Opp., Ex. 2, at 1. Mount Sinai then sent Mr. Einheber a letter stating that its security officer inadvertently accepted service on behalf of Dr. Fine, Dr. Glabman, Dr. Squire and Dr. Klion and that Mount Sinai was not authorized to accept service on the doctors' behalf. Opp., Ex. 1, at 1.
On October 16, 2003, Mr. Einheber approached Dr. Klion at a lecture, at which time Dr. Klion refused to shake Mr. Einheber's hand stating, "You want to shake my hand, Jack and you're suing me." Opp., Ex. 4, at 1.
Two-and-a-half years later, on February 6, 2006, Edith Tanaka averred under oath that, on October 4, 2004, she served Dr. Klion's Office Manager Donna Fennel. Opp., Ex. 3, at 1.
The Moving Defendants now move to amend the caption to remove the names of those defendants who were allegedly never served. Aff., at ¶ 5. In particular, the Moving Defendants claim that Dr. Kelly, Dr. Glabman, Dr. Squire and Dr. Klion were never properly served with summonses. Id. They further aver that none of these individuals has ever appeared in the action, either by service or answer. Id.
The Moving Defendants also move to dismiss the action against those defendants who were never deposed, namely, Dr. Squire, Dr. Glabman, Dr. Kim-Schluger and Nurse David. Aff., at ¶ 11. They argue that plaintiff has not particularized his claims against any of these defendants and as such, should not be permitted to proceed against them. Aff., at ¶ 13.
Finally, the Moving Defendants move to preclude plaintiff from presenting expert testimony at trial, arguing that Mr. Einheber's CPLR 3101(d) disclosures are untimely and insufficient to apprise defendants of the proposed testimony at trial. Aff., at ¶ 14. In October 2005, plaintiff served CPLR 3101(d) disclosures for five experts: Michael J. Holman, M.D. ("Dr. Holman"), a transplant surgeon; Rachelle Nemetsky Bitton, M.D. ("Dr. Bitton"), an endocrinologist; Aaron Gindea, M.D., a cardiologist; Timothy J. Smith, M.D., a specialist in internal medicine; and Debra Spicehandler, M.D., an infectious disease specialist. Aff., at ¶ 14. The Moving Defendants claim that the expert disclosures are unclear because they do not specify against which defendant each expert's testimony will be directed. Aff., at ¶ 15. Furthermore, they contend that they are entitled to separate expert disclosures as to each defendant. Aff., at ¶ 16. The Moving Defendants argue, moreover, that they are prejudiced and cannot adequately prepare to defend themselves at trial because plaintiff's CPLR 3101(d) disclosures are vague and ambiguous. Aff., at ¶¶ 18-19.
Mr. Einheber opposes the motion and cross-moves for a default judgment against Drs. Klion, Glabman, Squire and Kelly based on their failure to answer. Mr. Einheber also avers that Drs. Glabman, Squire and Klion were served and purports to submit affidavits of service for these three doctors. Opp., at ¶ 2. He claims that because he commenced this action pro se, he was not aware of the need for professional process or the affidavit form prescribed by CPLR 306. Opp., at ¶ 3. Mr. Einheber argues, moreover, that Dr. Klion acknowledged service when he stated that Mr. Einheber was suing him. Opp., at ¶ 7. Finally, plaintiff claims that the Moving Defendants should be estopped from making a motion to preclude expert testimony pursuant to CPLR 3101(d) because they waited four months after they received plaintiff's CPLR 3101(d) disclosure to make this motion. Opp., at ¶ 25.
Analysis
Amend Caption/Default Judgment
Plaintiff is not entitled to a default judgment against Drs. Kelly, Glabman, Squire or Klion.
To obtain a default judgment against a non-appearing defendant, plaintiff must move for a judgment within one year of the default and show (1) proof of service of the summons and complaint; (2) proof of the claim; and, (3) proof of the default. CPLR 3215(f); see also, Woodson v. Mendon Leasing Corp., 100 NY2d 62, 70-71 (2003). If plaintiff fails to move within one year of the default, the court may sua sponte dismiss plaintiff's complaint as abandoned, unless plaintiff demonstrates sufficient cause why the complaint should not be dismissed. CPLR 3215(c); see, Herzbrun v. Levine, 23 AD2d 744 (1st Dept. 1965); see also, Livingston v. Livingston, 303 AD2d 975 (4th Dept. 2003); Ingenito v. Grumman Corp., 192 AD2d 509, 510 (2nd Dept. 1993) ("an action is deemed abandoned where a default has occurred and where a plaintiff has failed to seek a default judgment within one year after the default").
Here, plaintiff waited three-and-a-half years well more than the one year period authorized by the CPLR after Drs. Kelly, Glabman, Squire and Klion failed to appear in this action before bringing this cross-motion for a default judgment. His cross-motion must be denied as it is untimely.
Moreover, even if plaintiff had timely moved for a default judgment, entry of judgment against Drs. Kelly, Glabman, Squire and Klion would be inappropriate because plaintiff has not demonstrated that the Court has personal jurisdiction over them.
Pursuant to CPLR 308, a plaintiff properly serves a defendant with a summons by either (1) "delivering the summons within the state to the person to be served;" or, (2) delivering the summons to a person "of suitable age and discretion" at the actual place of business or dwelling place of the person to be served and mailing the summons to the person at that person's last known residence or actual place of business. CPLR 308(1)-(2).
Case law is explicitly clear that, "notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court." Macchia v. Russo, 67 NY2d 592, 600 (1986). To obtain jurisdiction over a person, plaintiff must strictly follow the requirements of CPLR 308. New York State Higher Educ. Servs. Corp. v. Palmeri, 167 AD2d 797, 798 (3rd Dept. 1990). Indeed, if plaintiff does not comply with CPLR 308, the Court does not have jurisdiction over the person to be served even if that person actually receives the complaint: "When the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents." Raschel v. Rish, 69 NY2d 694, 697 (1986).
Additionally, upon electing to serve an individual of suitable age and discretion at a defendant's actual place of business or dwelling place, the plaintiff must file proof of service with the Court within twenty days of service or mailing and that proof of service must "identify such person of suitable age and discretion and state the date, time and place of service * * *." CPLR 308(2).
Mr. Einheber has not met any of these requirements.
With regard to Dr. Kelly, Mr. Einheber does not even argue that the doctor was properly served. Without any allegation or proof of service, it is clear that the Court cannot enter a default judgment against him. CPLR 3215(f).
Neither does Mr. Einheber submit a proper affidavit of service as to Drs. Glabman and Squire. Instead, he puts forth two pages, each of which reads "Received one page for [handwritten name of respective doctor], 10-11-02, [indecipherable signature]." Opp., Ex. 3, at 2, 3. The papers are insufficient to establish service was affected. They do not identify either the process server or the persons upon which service was attempted. They also fail to delineate the place of service. Furthermore, the papers contain no indication that plaintiff sent a follow-up mailing in accordance with CPLR 308(2). Thus, plaintiff has not demonstrated that this Court has personal jurisdiction over Drs. Glabman or Squire and his motion for a default judgment against them must be denied. See, Pesner v. Fried, 166 AD2d 512, 512-13 (2nd Dept. 1990) (dismissed for failure to properly complete follow-up mailing as required under CPLR 308).
Plaintiff's proof of service of Dr. Klion is likewise deficient. Again, in support of his contention that he properly served Dr. Klion, Mr. Einheber submits a piece of paper stating, "Received one packet for Dr. Klion, 10-10-02, [indecipherable signature]." Opp., Ex. 3, at 4. The paper, submitted purportedly in support of establishing service, does not identify the process server or the person who was served. Nor does it contain any indication that the process server mailed a follow-up copy to Dr. Klion's address as mandated by the CPLR. As such, plaintiff's motion for a default judgment against Dr. Klion must be denied. See, Pesner v. Fried, 166 AD2d, at 512-13.
Furthermore, Dr. Klion's acknowledgment of Mr. Einheber's lawsuit against him is insufficient to bring him under the jurisdiction of this Court. Case law is clear: "Notice of the lawsuit by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court." Brooklyn Union Gas Co. v. Arrao, 100 AD2d 949 (2nd Dept. 1984) (denying default judgment).
Finally, Mr. Einheber's submission of an affidavit of service dated February 6, 2006 professing to have served Dr. Klion 16 months prior to execution of the affidavit is insufficient to prove proper service. In the affidavit, the process server avers that she delivered the complaint to Dr. Klion's office manager, but does not aver that she mailed a follow-up copy of the initiating papers. Thus, plaintiff has not demonstrated entitlement to a default judgment against Dr. Klion. See, Pesner v. Fried, 166 AD2d, at 512-13.
In the end, by failing to timely seek a default judgment, Mr. Einheber abandoned his claims against Drs. Kelly, Glabman, Squire and Klion. His claims against Drs. Kelly, Glabman, Squire and Klion are therefore dismissed as abandoned and the caption is amended to reflect the dismissal. CPLR 3215(c). Furthermore, even if he had timely moved, there would be no basis for granting the relief sought because there is absolutely no indication that service was proper.
Dismissal for Failure to Seek Disclosure
To begin, the Moving Defendants' motion to dismiss plaintiff's claims against Drs. Glabman and Squire for failure to seek to disclosure from them are denied as moot because plaintiff's claims against them have already been dismissed.
The Moving Defendants' motion to dismiss plaintiff's claims against Nurse David and Dr. Kim-Schluger on the ground that Mr. Einheber never sought their deposition is denied. Failure to seek a deposition from a defendant is not a basis for dismissal. Indeed, there is no CPLR requirement that plaintiff seek disclosure and the Moving Defendants have not set forth which CPLR provision, if any, authorizes the relief sought.
If defendants believe that dismissal of plaintiff's claims against Nurse David and Dr. Kim-Schluger is warranted because plaintiff has gathered insufficient facts to demonstrate a cause of action against these defendants, they should have moved for summary judgment dismissal within 60 days of filing the note of issue as required by this Court's rule. Indeed, the case that the Moving Defendants cite in support of their motion to dismiss for failure to seek disclosure, Larrabee v. Marine Midland Bank-Central, 43 NY2d 788 (1977), involved dismissal of the action on summary judgment for failure to substantiate a theory of recovery.
In the end, the Moving Defendants have not demonstrated any basis for dismissal and their motion to dismiss the claims against Nurse David and Dr. Kim-Schluger is denied.
Preclude Expert Testimony
Defendants' motion to preclude Mr. Einheber from offering expert-witness testimony at trial is likewise denied.
CPLR 3101(d)(1)(i) provides that, "Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion."
According to a memorandum from the State Executive Department, the purpose of CPLR 3101(d) is to encourage "prompt settlement by providing both parties an accurate measure of the strength of their adversaries' case" and to discourage parties from "asserting insupportable claims or defenses, knowing that they will be required to disclose, what, if any, expert evidence will support their allegations." Mem. of State Exec. Dept., 1985 McKinney's Session Laws of NY, at 3025. The statute is also intended to promote efficiency at trial by facilitating cross-examination and rebuttal testimony. Chapman v. State, 227 AD2d 867, 868 (3rd Dept. 1996).
Thus, each party is obligated to disclose "a summary of the grounds" for each expert's opinion. Richards v. Herrick, 292 AD2d 874 (4th Dept. 2002); Pizzi v. Muccia, 127 AD2d 338, 340 (3rd Dept. 1987). A CPLR 3101(d) response that is "so general and nonspecific that defendants have not been enlightened to any appreciable degree about the content of this expert's anticipated testimony" is insufficient to meet the requirements of the statute. Richards v. Herrick, 292 AD2d, at 874. Furthermore, a conclusory response or a "mere statement of ultimate conclusion reached" is likewise insufficient to comply with the statute. McArthur v. Muhammad, 16 AD3d 630, 631 (2nd Dept. 2005); Brossoit v. O'Brien, 169 AD2d 1019, 1020-21 (3rd Dept. 1991).
Nonetheless, the statute does not require "particularity." Scher v. St. Luke's-Roosevelt Hosp., N.Y.L.J., Jan. 28, 2003, at 18, col. 4 (Sup.Ct., New York County) (Bransten, J.). Indeed, a party's request for facts and opinions on which another party's expert is expected to testify is improper. Krygier v. Airweld, Inc., 176 AD2d 700, 700-01 (2nd Dept. 1991) (requesting party only entitled to substance of facts and opinions).
Courts have made clear, moreover, that, "preclusion for failure to comply with CPLR 3101(d) is improper unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party." Shopsin v. Siben Siben, 289 AD2d 220, 221 (2nd Dept. 1991); see, Busse v. Clark Equip. Co., 182 AD2d 525, 526 (1st Dept. 1992) (denying preclusion of expert testimony because moving party failed to show prejudice); see also, Douglass v. St. Joseph's Hosp., 246 AD2d 695, 696 (3rd Dept. 1998).
Mr. Einheber's expert disclosures are reasonably detailed so as to apprise the Moving Defendants as to the substance of each expert's opinion and which periods of medical treatment each expert will cover. For example, Dr. Bitton will testify that "Jack came to [Mount Sinai] on an appropriate daily dose * * * of calcium citrate and * * * Vitamin D. The lowering of his calcium citrate dose to one-half or less was clearly well below accepted standards of medical care in 1999." Opp., Ex. 7, at 3. Additionally, Dr. Holman will testify that because the transplant was not staffed with two major surgeons, Mr. Einheber suffered "excessive blood loss during the operation * * *, [leading] to renal failure." Opp., Ex. 7, at 1.
Plaintiff's expert disclosures are only deficient in that they fail to particularize to which defendants each expert's testimony will be directed.
Since defendants have presented no evidence that plaintiff's failure to submit separate CPLR 3101(d) disclosures as to each defendant was willful, the appropriate remedy is to require plaintiff to supplement his disclosures to specify against which defendants each expert will testify. See, Arellano v. New York City Health and Hosps. Corp., 5 Misc 3d 1016 (Sup.Ct., New York County, Feb. 23, 2004) ("qualitative insufficiency of plaintiff's CPLR 3101[d][1][i] response may be easily cured by requiring the plaintiff to provide the defendants with the information they sought").
Moreover, the alleged "prejudice" to defendants is easily curable. The Court will grant a brief adjournment, during which time plaintiff is directed to serve defendant-specific 3101(d) disclosures. Shopsin v. Siben Siben, 289 AD2d, at 221 (potential prejudice alleviated by granting an adjournment). If plaintiff does not serve defendant-specific CPLR 3101(d) disclosures within 15 days of this Decision and Order, the Court will preclude him from offering expert testimony at trial.
Accordingly, it is
ORDERED that plaintiff's motion for a default judgment is denied; and it is further
ORDERED that plaintiff's claims against Drs. Kelly, Glabman, Squire and Klion are dismissed as abandoned based on plaintiffs' failure to timely seek a default judgment against defendants. The complaint is hereby severed and dismissed as against defendants Dr. Kelly, Dr. Glabman, Dr. Squire and Dr. Klion, and the Clerk is respectfully directed to enter judgment in favor of said defendants; and it is further
ORDERED that the Moving Defendant's motion to amend the caption to reflect the dismissal of defendants is granted and the caption is amended as follows:
X; and it is further
ORDERED that counsel for the Moving Defendants shall serve a copy of this order with notice of entry upon the Clerk of the Court and upon the Clerk of the Trial Support Office (Room 158), who are directed to amend their records to reflect such change in the caption herein; and it is further
ORDERED that the remainder of the action shall continue; and it is further
ORDERED that the Moving Defendants' motion to dismiss plaintiff's claims against Nurse David and Dr. Kim-Schluger is denied; and it is further
ORDERED that the Moving Defendants' motion to preclude plaintiff from offering expert testimony is denied; and it is further
ORDERED that within 15 days of this Decision and Order, plaintiff is directed to serve separate CPLR 3101(d) disclosures as to each defendant; and it is further
ORDERED that the parties are to appear for a pre-trial conference on May 30, 2006 at 9:30 a.m.; and it is further
ORDERED that the parties are to appear for trial on June 12, 2006.
This constitutes the Decision and Order of the Court.