Opinion
6236/05.
June 29, 2009.
The following papers having been read on this motion:
1,2,3 4,5,6 7
Notice of Motion, Affidavits, Exhibits ................ Answering Affidavits .................................... Replying Affidavits ..................................... Briefs: Plaintiffs / Petitioner's ....................... ____________ Defendant's / Respondent's .............................. _____________The defendants Homayoun Nazarian Sasson, M.D. and H. Sasson, M.D., P.C. move pursuant to CPLR 3126 to strike the note of issue and dismiss this medical malpractice action with prejudice for the plaintiffs' willful failure to obey the July 16, 2008 court order, and stay all proceedings in this matter until the issues raised by this motion are resolved. The plaintiffs oppose that defense motion, and move pursuant to CPLR 2004 to enlarge the time to file a note of issue. The defendant North Shore University Hospital moves pursuant to CPLR 3126 and 22 NYCRR § 202.56 (b) (2) to strike the note of issue and dismiss this action with prejudice for the plaintiffs' willful failure to obey the July 16, 2008 court order, and stay all proceedings in this matter until the issues raised by this motion are resolved. The underlying action arises from treatment the plaintiff received for a hand injury resulting from a home table power saw. This Court has carefully reviewed and considered all of the papers submitted with respect to these three motions.
The plaintiffs testified, at an examination before trial, on June 21, 2006, and Homayoun Nazarian Sasson, M.D. testified, at an examination before trial, on November 15, 2006. This medical malpractice action was certified on November 27, 2006, and a note of issue was served by the plaintiffs' prior counsel on or about February 27, 2007. The case appeared on the DCM pretrial calendar on June 19, 2007, and adjourned numerous time from August 7, 2007, until May 12, 2008, when plaintiffs' counsel agreed to vacate the note of issue, and the Supreme Court, Nassau County issued an order vacating the note of issue, and restored the matter to the Trial Recertification Part pursuant to 22 NYCRR § 202.21 (e). The Supreme Court, by that court order, directed all parties to return to the Trial Recertification Part on July 16, 2008.
On July 16, 2008, the Supreme Court held a re-certification conference with the parties' attorneys which resulted in a court order directing the plaintiffs to file a note of issue within 90 days, or the action would be dismissed without further order of the Court. On July 28, 2008, the plaintiffs' substituted counsel, and on or about January 21, 2009, the defense counsel received a note of issue from the plaintiffs' attorney.
The attorney for the defendants Homayoun Nazarian Sasson, M.D. and H. Sasson, M.D., P.C. asserts, in an affirmation dated January 27, 2009, the plaintiffs violated the July 16, 2008 court order, and in order to avoid default, the plaintiffs are obliged to show either timely filing of the note of issue or move for an extension of time within which to comply pursuant to CPLR 2004. The attorney for the defendants Homayoun Nazarian Sasson, M.D. and H. Sasson, M.D., P.C. points out the plaintiffs' unwillingness to proceed to trial and delay of the prosecution of this matter began in May 2008 when the original note of issue was vacated by the plaintiffs' then counsel during an appearance in the Central Jury Part. The attorney for the defendants Homayoun Nazarian Sasson, M.D. and H. Sasson, M.D., P.C. contends the plaintiffs' case is meritless, otherwise the trial would have already taken place. The attorney for the defendants Homayoun Nazarian Sasson, M.D. and H. Sasson, M.D., P.C. avers the plaintiffs have not demonstrated a reasonable excuse for their wilful failure to prosecute this case nor a meritorious cause of action to avoid dismissal, a conclusory and unsubstantiated assertion of law office failure is insufficient to excuse a delay in filing the note of issue by the deadline.
The plaintiffs' counsel states, in detail, in an affirmation dated January 28, 2009, sequence of events leading to the July 16, 2008 court order. The plaintiffs' counsel admits overlooking the copy of the July 16, 2008 court order contained in a voluminous file, and erroneously believing the recertification conference restored the matter to the calendar, so he awaited notification of apretrial conference. The plaintiffs' counsel alleges he inquired in the Motion Support Office on January 16, 2009, about the status of this case, and learned about the July 16, 2008 court order, and the expiration of the 90 day period contained in that court order. The plaintiffs' counsel acknowledges the responsibility for the delay is his duty. The plaintiffs' counsel maintains granting this motion by the plaintiffs will not significantly affect the trial date of a medical malpractice action which typically encounters delays caused by the unavailability of counsel or experts.
The attorney for the defendants Homayoun Nazarian Sasson, M.D. and H. Sasson, M.D., P.C. asserts, in an affirmation dated February 12, 2009, the plaintiffs fail to show a requisite justifiable excuse for the delay in filing the note of issue as directed by the Court. The attorney for the defendants Homayoun Nazarian Sasson, M.D. and H. Sasson, M.D., P.C. points out plaintiffs counsel's conclusory, undetailed and uncorroborated claim of law office failure does not establish a justifiable excuse for the delay in filing the note of issue as directed by the Court. The attorney for the defendants Homayoun Nazarian Sasson, M.D. and H. Sasson, M.D., P.C. avers the plaintiffs counsel's erroneous belief the recertification conference automatically restored the case to the calendar is not a justifiable excuse. The attorney for the defendants Homayoun Nazarian Sasson, M.D. and H. Sasson, M.D., P.C. maintains the plaintiffs have not demonstrated a meritorious cause of action to avoid dismissal. The attorney for the defendants Homayoun Nazarian Sasson, M.D. and H. Sasson, M.D., P.C. points to the statement by Dr. Schwartz, and states it lacks the doctor's signature, and the conclusions lack factual support, and it come from a doctor without proper expertise to comment on hand surgery, plastic surgery or orthopedic surgery and follow up treatment. The attorney for the defendants Homayoun Nazarian Sasson, M.D. and H. Sasson, M.D., P.C. contends these defendants are prejudiced by the restoration of this matter to the trial calendar with respect to the procedural history of the case, and notes the defense may not be able to obtain all of the plaintiffs' health care records and witnesses for trial purposes because of the delay.
The defense counsel for North Shore University Hospital points, in detail, in an affirmation dated February 12, 2009, to the procedural history of this litigation. The defense counsel for North Shore University Hospital concedes receipt of the motion papers by defendants Homayoun Nazarian Sasson, M.D. and H. Sasson, M.D., P.C., and adopts and incorporates by reference those factual and legal arguments. The defense counsel for North Shore University Hospital argues the action should be dismissed.
The defense counsel for North Shore University Hospital points out, in an affirmation dated February 20, 2009, the plaintiffs fail to show a requisite justifiable excuse for the delay in filing the note of issue as directed by the Court. The defense counsel for North Shore University Hospital notes the plaintiffs counsel's conclusory, undetailed and uncorroborated claim of law office failure does not establish a justifiable excuse for the delay in filing the note of issue. The defense counsel for North Shore University Hospital asserts the plaintiffs' explanation the court order was overlooked for six months does not justify counsels' failure to file the note of issue as directed by the Court. The defense counsel for North Shore University Hospital averrs the plaintiffs the plaintiffs expert's affirmation offers only conclusory opinions without factual support. The defense counsel for North Shore University Hospital contends that expert sworn statement fails to establish a meritorious cause exists, to wit the doctor and hospital departed from good and accepted medical practice within a reasonable degree of medical certainty. The defense counsel for North Shore University Hospital submits these defendants are prejudiced should this matter be restored to the trial calendar since there is a pattern by the plaintiffs to delay the lawsuit where they were given opportunities to certified it and file the note of issue. The defense counsel for North Shore University Hospital states the defense may not be able to obtain all of the plaintiffs' health care records and witnesses for trial purposes because of the delay.
The plaintiffs' counsel states, in an affirmation dated February 23, 2009, in reply to the affirmation submitted by North Shore University Hospital, the plaintiffs demonstrated a justifiable excuse for the three month delay in attempting to file a note of issue, and a meritorious cause of action. The plaintiffs' counsel states there is no pattern of delay as suggested by this defendant with regard to the oversight. The plaintiffs' counsel maintains the affirmation by Dr. Schwartz, a licensed physician in New York State, is more than sufficient to demonstrate a meritorious claim. The plaintiffs' counsel avers the delay was not willful, while acknowledging his oversight, he cannot make a more detailed statement because he was unaware of the deadline, even though it was there and available to him. The plaintiffs' counsel submits strong public policy prefers resolution of cases on merits.
The plaintiffs' counsel states, in an affirmation dated February 23, 2009, the plaintiffs demonstrated a justifiable excuse for the three month delay in attempting to file a note of issue, and a meritorious cause of action. The plaintiffs' counsel maintains it was his oversight of the July 16, 2008 court order which caused the failure to obey the July 16, 2008 court order, to wit "I did not know of the deadline, although the deadline there was [sic], and the order containing it was available to me." The plaintiffs' counsel alleges that oversight was not willful, and when he became aware of the oversight, he immediately filed the note of issue, and paid the requisite fee to the County Clerk. The plaintiffs' counsel points to the August 2, 2007 court order where the Supreme Court found there are triable issues of fact with respect to the liability of North Shore University Hospital. The plaintiffs' counsel points out the Supreme Court ruled as to the vicarious liability of North Shore University Hospital for the alleged medical malpractice by Dr. Sasson, the Court implicitly found the claims against Dr. Sasson had merit. The plaintiffs' counsel contends there are alternatives to dismissal, and the Court could elect to impose a penalty to the responsible party, and the plaintiffs could still have their day in court.
The defense counsel for North Shore University Hospital points, in an affirmation dated March 5, 2009, to the plaintiffs' scarce opposition which does little to provide an explanation for its unacceptable delay in prosecuting this action, and complying with court orders. The defense counsel for North Shore University Hospital notes the parties appeared for at least 13 conferences which were adjourned because the plaintiffs' counsel was unready to proceed to trial. The defense counsel for North Shore University Hospital asserts the opposition to both defense motions fails to proffer a justifiable explanation for failing to file a new note of issue as required by the Court nor a meritorious cause of action, but only submits an expert affirmation offering conclusory opinions. The defense counsel for North Shore University Hospital avers the defendants will certainly encounter grave prejudice in trying a case where the medical records may no longer be available to them given the almost two and a half year lapse from the original certification, and the almost five year lapse since the happening of the alleged negligence.
The Second Department, in an analogous matter held:
The plaintiff failed to file a note of issue or to move, before the default date, to vacate the 90-day notice or to extend the 90-day period for service and filing of a note of issue. She failed to demonstrate either a justifiable excuse for the delay in complying with the 90-day notice or a meritorious cause of action insofar as asserted against Family Services-the party which served the notice ( see CPLR 3216 [e]; Baczkowski v Collins Constr. Co. , 89 NY2d 499 [1997]; Zito v Jastremski , 35 AD3d 458 [2006]). The plaintiff's only excuse, that discovery had not been completed, was insufficient, since she failed to adequately explain her own neglect in complying with her outstanding discovery obligations ( see Levin v Levin , 256 AD2d 447, 448 [1998]; Olshansky v Lutheran Med. Ctr. , 211 AD2d 772, 773 [1995]). Furthermore, the conclusory allegations contained in the verified complaint and the plaintiff's affidavit were insufficient to show a meritorious cause of action insofar as asserted against Family Services ( see Lugauer v Forest City Ratner Co. , 44 AD3d 829, 830 [2007]; Carnegie v J.P. Phillips, Inc. , 28 AD3d 599, 600 [2006]). Accordingly, under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the motion of Family Services to dismiss the complaint insofar as asserted against it for failure to prosecute, upon finding that the plaintiff failed to comply with the 90-day notice
Koehler v. Sei Young Choi , 49 A.D.Sd 504, 505, 854 N.Y.S.2d 726 [2nd Dept, 2008].
The Second Department has also held:
In order to excuse their default and to restore this action to the calendar, the plaintiffs were required to demonstrate a justifiable excuse for their failure to timely file the note of issue and a meritorious claim ( see CPLR 3216 [e]; Baczkowski v Collins Constr. Co. , 89 NY2d 499, 503 [1997]; Serby v Long Is. Jewish Med. Ctr. , 34 AD3d 441 [2006]; Amato v Commack Union Free School Dist. , 32 AD3d 807 [2006]; Chaudhry v Ziomek , 21 AD3d 922, 924 [2005]). Although the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005), a claim of law office failure should be supported by a "detailed and credible" explanation of the default at issue (see Henry v Kuveke, 9 AD3d 476, 479 [2004]; see also Gironda v Katzen , 19 AD3d 644, 645 [2005]). The conclusory, undetailed, and uncorroborated claim of law office failure set forth by the plaintiffs in this case does not amount to a reasonable excuse ( see Matter of ELRAC, Inc. v Holder , 31 AD3d 636 [2006]; Matter of Denton v City of Mount Vernon , 30 AD3d 600, 601 [2006]; McClaren v Bell Atl , 30 AD3d 569 [2006]; Solomon v Ramlall , 18 AD3d 461 [2005]; Grezinsky v Mount Hebron Cemetery , 305 AD2d 542 [2003])
Lugauer v. Forest City Ratner Co. , 44 A.D.3d 829, 830, 843 N.Y.S.2d 456 [2nd Dept, 2007].
The Second Department has further held on the issue of law office failure:
By order dated July 14, 2000, the Supreme Court stated, inter alia, that counsel for all parties certified that all discovery and pretrial motions were complete. The Supreme Court also, sua sponte, directed the plaintiff to serve and file a note of issue within 90 days, noting that "[f]ailure to comply within 90 days may serve as a basis for dismissal pursuant to CPLR 3216." The plaintiff failed either to timely file a note of issue or move pursuant to CPLR 2004 for an extension of time within which to comply. Having failed to pursue either of the foregoing options, the plaintiff was obligated to demonstrate a reasonable excuse and a good and meritorious cause of action to avoid the sanction of dismissal ( see CPLR 3216 [e]; Longacre Corp. v Better Hosp. Equip. Corp. , 228 AD2d 653; Papadopoulas v R.B. Supply Corp. , 152 AD2d 552, 553). The plaintiff failed to do so. The excuse proffered by the plaintiff's attorney, that he mistakenly treated the July 14, 2000, order containing the 90-day notice as a further discovery stipulation, in view of the clear and plain language of the order, is unreasonable, and does not rise to the level of law office failure. Therefore, it is unnecessary for us to consider the adequacy of the plaintiff's proffered demonstration of merit to the action
Washington v. Gorray , 302 A.D.2d 454, 753 N.Y.S.2d 751 [2nd Dept, 2003].
The Second Department holds: "'[E]xpert opinions that are conclusory or unsupported by the record are insufficient to raise triable issues of fact' ( Schrader v. Sunnyside Corp. , 297 A.D.2d 369, 371, 747 N.Y.S.2d 26; see Fhima v. Maimonides Med. Ctr. , 269 A.D.2d 559, 703 N.Y.S.2d 743)" ( Micciola v. Sacchi , 36 A.D.3d 869, 871, 828 N.Y.S.2d 572 [2nd Dept., 2007]). The Second Department found:
The physician's affidavit did not specify any acts on the part of the defendants which constituted a departure from accepted medical practice and did not even state that the plaintiff was a victim of medical malpractice. Such an affidavit is bare and conclusory, and wholly insufficient to establish the merits of the action ( see, Romanoff v. St. Vincent's Hosp. Med. Center , 97 AD2d 382). The plaintiff's own affidavit was also insufficient to establish the merits of this medical malpractice claim ( see, Fiore v. Galang , 64 NY2d 999).
Friedberg v. Bay Ridge Orthopedic Associates, P.C. , 122 A.D.2d 194, 195, 504 N.Y.S.2d 731 [2nd Dept., 1986]).
The plaintiffs now moves pursuant to CPLR 2004 for an extension of time within which to comply with the July 16, 2008 court order. The defendants have met their burdens under CPLR 3126 and 22 NYCRR § 202.56 (b) (2) to strike the note of issue and dismiss this action for the plaintiffs' willful failure to obey the July 16, 2008 court order The Court is constrained, as a matter of law, and finds the plaintiffs failed to abide by the July 16, 2008 court order, and they do not show a justifiable excuse for the delay nor a good and meritorious cause of action as required by law. The Court finds the plaintiffs have failed to satisfied the aspect of prejudice to the defendants should the action be restored to the calendar, the defense has shown they will suffer substantial prejudice in such a restoration.
Accordingly, the motions by Homayoun Nazarian Sasson, M.D. and H. Sasson, M.D., P.C. and North Shore University Hospital are granted, and the motion by the plaintiffs is denied.
So ordered.