Opinion
118289/06.
Decided September 24, 2007.
In motion sequence number 01, pursuant to CPLR 510 and 511(b), defendants Park Avenue Plastic Surgery, P.C. and David Ostad, M.D. ("Dr. Ostad") (collectively the "Ostad Defendants") move for an Order transferring the venue of this action from New York County to Nassau County. Defendant James J. Reardon, M.D. ("Dr. Reardon") d/b/a Cosmetic Surgery Center of New York s/h/a The Cosmetic Surgery Center of New York ("Cosmetic Surgery Center") cross-moves, pursuant to CPLR 3212, for summary judgment dismissal of the complaint. Plaintiff Gina Tilley ("Ms. Tilley") opposes the motion and the cross-motion and cross-moves to retain venue in New York County. Ms. Tilley also cross-moves to amend the caption to replace the misnamed defendant "The Cosmetic Surgery Center of New York" with the correct party that should be listed as "James Reardon, M.D. d/b/a The Cosmetic Surgery Center of New York." Defendants do not oppose amendment of the caption.
Background
On August 11, 2004, Ms. Tilley underwent transgender reassignment surgery, which was performed by Dr. Ostad at 737 Park Avenue in Manhattan. Affirmation in Opposition to Motion and in Support of Plaintiff's Cross-Motion ("Opp."), at ¶ 3; Affirmation in Support of Plaintiff's Second Cross Motion, In Opposition to Motion of Defendant the Cosmetic Surgery Center, and in Reply on Plaintiff's First Cross-Motion ("Cosmetic Surgery Opp."), Ex. A, at ¶ 2. "All the follow up care was also at the Cosmetic Surgery Center of New York at 737 Park Avenue, New York, New York." Cosmetic Surgery Opp., Ex. A, at ¶ 2. "On one occasion, follow up care for pain was performed by another physician who was not David Ostad, but was rendered at The Cosmetic Surgery Center of New York at 737 Park Avenue, New York, New York. [Ms. Tilley believes] that other physician was Dr. Reardon." Id., at ¶ 3.
In this medical malpractice action, commenced in December 2006, Ms. Tilley alleges, among other things, that Dr. Ostad "negligently performed breast implant surgery, resulting in migration of the implants to [her] armpit area." Opp., at ¶ 3. Ms. Tilley further alleges that Dr. Ostad was a partner, stockholder and employee of The Cosmetic Surgery Center of New York." Affirmation in Support (on behalf of the Ostad Defendants) ("Supp."), Ex. A., at ¶¶ 26-28. She claims, among other things, that "Defendants * * * were negligent * * * in negligently administering aftercare" and that the "medical treatment rendered * * * by defendant, his partners, agents, servants, licensees, employees, was performed negligently and carelessly and was rendered in a manner which departed from the standard of good and accepted medical practice then and there prevailing and constituted medical malpractice." Supp., Ex. A, at ¶¶ 30, 31.
The Ostad Defendants now move for transfer of this action to Nassau County and the Cosmetic Surgery Center seeks dismissal of the claims asserted against it.
Ms. Tilly, among other things, opposes the motions.
AnalysisChange of Venue
The Ostad Defendants move for transfer of the action to Nassau County, arguing that venue improper in New York County. Specifically, they contend that at the time the lawsuit was commenced neither plaintiff (a New Jersey resident) nor the Ostad Defendants (Nassau County residents) resided in New York County. Supp., at ¶ 8. They entirely neglect, however, to address the residency of co-defendant the Cosmetic Surgery Center, because "plaintiff fails to establish that [the co-defendant] has been served in this action [or] that it is a legally cognizable entity that can be sued." Reply Affirmation in Support of Defendant's Motion to Change Venue and in Opposition to Plaintiff's Cross-Motion ("Ostad Reply"), at ¶ 6.
Ms. Tilley opposes the motion, arguing that she was treated by Dr. Ostad in New York County, her surgery was performed at the Cosmetic Surgery Center in New York County and aftercare was rendered in New York County. Opp., at ¶ 4. She maintains that the only reason Dr. Ostad no longer practices in New York County is because his license has been revoked. Id., at ¶ 5. She further points out that she resides in New Jersey and it would be "unreasonably burdensome" to require her to attend a trial in Nassau County, which has no connection to this case whatsoever. She asserts that "as a person in transition from male to female, [she] has a reasonable fear of hostility and of physical danger if she is required to travel to Nassau County" where she will not be covered by the New York City Human Rights Law, which prohibits "discrimination, prejudice, intolerance, and bigotry." Id., at ¶¶ 8-9.
More on point, Ms. Tilley sets forth that the Cosmetic Surgery Center of New York maintains a principal office in New York County. Opp., at ¶ 7; Cosmetic Surgery Opp., at ¶ 23 ("Venue pursuant to CPLR 503 is proper based on the presence of [the Cosmetic Surgery Center] in this action").
CPLR 503(a) provides that "the place of trial shall be in the county in which one of the parties resided when it was commenced." See also, Leopold v. Goldstein, 283 AD2d 319 (1st Dept. 2001) ; Simpson v. Sears, Roebuck and Co., 212 AD2d 473 (1st Dept 1995). A domestic corporation "shall be deemed a resident of the county in which its principal office is located." CPLR 503(c).
The Ostad Defendants have not established that venue in New York County is improper. There is absolutely no indication that at the time this suit was commenced the Cosmetic Surgery Center did not reside in New York County. Indeed, in its cross-motion for summary-judgment dismissal of the case, the Cosmetic Surgery Center asserts that once it is no longer in the case the "connection [to New York County] will no longer be applicable." Affirmation in Support of Cross Motion and in Support of Defendant's Motion for Summary Judgment and in Support of Codefendants' Motion for Change of Venue ("Cosmetic Surgery Supp.") (emphasis added), at ¶ 21.
Because there has been no showing that the Cosmetic Surgery Center did not reside in New York County at the time the action was commenced, there is no indication that venue is improper and the Ostad Defendants' motion is denied.
Regardless of whether the action is dismissed as against the Cosmetic Surgery Center, venue is proper in New York County because at the commencement of this action — the relevant time for analyzing the propriety of venue — it resided within the County. See, Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C:503:1 ("dismissal of a party in a multi-party case provides a basis for a discretionary change") (emphasis added). There is absolutely no indication that Ms. Tilley sued the Cosmetic Surgery Center simply in an effort to maintain the case in New York County. Ms. Tilly underwent surgery at the Cosmetic Surgery Center in Manhattan and believed in good faith that there was a relationship between all of the defendants.
Because venue will be retained in this County, there is no occasion to address Ms. Tilley's cross-motion for retention of venue in New York County based on the convenience of the material witnesses. Opp., at ¶ 12.
Cosmetic Surgery Center's Motion for Summary Judgment
Pursuant to CPLR 3212, the Cosmetic Surgery Center moves for summary judgment dismissal of the case against it. In support of the motion, Dr. Reardon submits an affidavit in which he swears:
"At no time did I ever render medical care or treatment or advice to Gina Tilley, nor was Gina Tilley ever my patient or a patient of James J. Reardon, M.D., P.C. or James J. Reardon, M.D. d/b/a Cosmetic Surgery Center of New York.
"Furthermore, [Dr. Ostad] has never been an agent, servant or employee ofJames J. Reardon, M.D. or James J. Reardon, M.D., P.C. or James J. Reardon, M.D. d/b/a Cosmetic Surgery Center of New York. James J. Reardon, M.D., James J. Reardon, M.D., P.C. and James J. Reardon, M.D. d/b/a Cosmetic Surgery Center of New York have never had any affiliation or connection with Park Avenue Plastic Surgery, P.C. and Park Avenue Plastic Surgery P.L.L.C.
"In or around August 11, 2004, James J. Reardon, M.D., P.C. rented an operating suite at 737 Park Avenue, New York, New York to [Dr. Ostad] on a per operation basis for use in his performance of surgery on his patients pursuant to an oral agreement. There was no written agreement at any time between [the Ostad Defendants] and James J. Reardon, M.D. or James J. Reardon, M.D., P.C. or James J. Reardon, M.D. d/b/a Cosmetic Surgery Center of New York.
Cosmetic Surgery Center Supp., Ex. D., at ¶¶ 2-4.
Ms. Tilley opposes the motion, urging that the "surgery which forms the basis of this action, as well as all surgical aftercare, was rendered at [the Cosmetic Surgery Center]. A physician of [the Cosmetic Surgery Center], who is believed to be James Reardon, M.D., rendered surgical aftercare in its facility on one occasion, without the presence of defendant [Dr. Ostad]." Cosmetic Surgery Opp., at ¶ 3. "In addition," according to Ms. Tilley's attorney, "it appears likely that an employee of [the Cosmetic Surgery Center] played some role in [her] actual treatment, at least in her surgical aftercare." Id., at ¶ 7 (emphasis added). Ms. Tilley's counsel further asserts:
"On one occasion after the surgery, [Ms. Tilley] called the phone number for [Dr. Ostad] complaining of significant pain. Dr. Ostad was not available and Ms. Tilley was treated in [the Cosmetic Surgery Center] by another physician, who is believed to be [Dr. Reardon]. The circumstances of this treatment, as well as the true nature of the relationship between [Dr. Ostad and the Cosmetic Surgery Center] must be developed through discovery."
Id., at ¶¶ 17-18 (emphasis added).
Significantly, however, in arguing that venue should be retained in New York County — in opposition to the Ostad Defendants' motion — Ms. Tilly never once mentioned any care by Dr. Reardon or any other physician potentially affiliated with the Cosmetic Surgery Center. She set forth:
"Furthermore, all treating physicians are located in Manhattan. In addition to defendant [Dr. Ostad's] treatment of plaintiff in Manhattan, plaintiff consulted with Dr. Scott Newman, M.D., F.A.C.S. in his New York County office * * *. Plaintiff also consulted with Dr. M. Zakir Sabry, M.D. at his New York [County] office * * *."
Opp., at ¶ 14.
Ms. Tilley further contends that summary judgment should be denied because the Cosmetic Surgery Center should be liable for "negligent entrustment." Cosmetic Surgery Opp., at 3. She alleges that The Cosmetic Surgery Center "knew or should have known that [Dr. Ostad] was incompetent to perform surgery, yet [it] negligently allowed [him] to use its surgical tools and facilities." Cosmetic Surgery Opp., at ¶ 7. She contends that the owner of dangerous equipment cannot entrust it to one who will create an unreasonable risk of harm and that the Cosmetic Surgery Center can be liable for providing "the scalpels, retractors, anesthesia, the table and all of the tools of surgery as well as a Park Avenue name and address." Id., at ¶ 9.
In opposition to the motion, Ms. Tilley further asserts that it " may well prove to be that [the Cosmetic Surgery Center] was obliged to report adverse events [concerning Dr. Ostad] to the New York State Department of Health." Cosmetic Surgery Opp., at ¶ 11 (emphasis added). She also contends that the Cosmetic Surgery Center should be liable because it "provided and benefitted financially from holding itself out as the employer or partner of [Dr. Ostad] and is vicariously liable for his acts of malpractice [based on the] rule * * * that a facility may be liable for care rendered by an independent doctor, where the patient reasonably relied upon the apparent relationship with the facility." Cosmetic Surgery Opp., at ¶ 15.
Summary judgment is a "drastic remedy" that should not be granted if there is any doubt as to the existence of a triable issue. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978); see also, Greenidge v. HRH Constr. Corp., 279 AD2d 400, 403 (1st Dept. 2001); DuLuc v. Resnick, 224 AD2d 210, 211 (1st Dept. 1996); Renda v. Frazer, 75 AD2d 490, 496 (4th Dept. 1980). Moreover, "on a defendant's motion for summary judgment, opposed by plaintiff, [the court is] required to accept the plaintiff's pleadings, as true, and [its] decision must be made on the version of the facts most favorable to [plaintiff]." Byrnes v. Scott, 175 AD2d 786, 786 (1st Dept. 1991).
The proponent of a summary judgment motion has the burden of making of a prima facie showing of entitlement to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986). Once the movant has made this showing, the burden then shifts to the opponent of summary judgment to establish that there is a material issue of fact that warrants a trial. Id.
The Cosmetic Surgical Center has established through admissible evidence — Dr. Reardon's affidavit — that it had no relationship with Dr. Ostad other than renting him an operating suite. Ms. Tilley has not offered any evidence even suggesting to the contrary. Ms. Tilley, moreover, has not demonstrated that the Cosmetic Surgery Center could be held vicariously liable for Dr. Ostad's alleged negligence. There is no evidence nor even an allegation in the complaint that Ms. Tilley sought medical care from the Cosmetic Surgery Center in particular and reasonably relied on the center as opposed to seeking care from her chosen doctor — Dr. Ostad. See, Hill v. St. Clare's Hosp., 67 NY2d 72, 81 (1986).
Importantly, Ms. Tilley's complaint makes absolutely no mention of any potential liability based on "negligent entrustment." The first time this theory was ever set forth was in response to the Cosmetic Surgery Center's motion for summary judgment and even in that posture Ms. Tilley failed to set forth a single case holding that an entity can be liable for furnishing medical facilities or equipment to a licensed physician (albeit one with lawsuits commenced against him). Contrast, e.g., Myers v. 149 Automotive, Inc., 295 AD2d 104 (1st Dept. 2002) (recognizing potential liability for breach of the "common-law duty to entrust dangerous materials only to responsible persons whose use would not create an unreasonable risk of harm to others" after a gas station provided gasoline to an assailant in a paper cup).
There was no allegation in the complaint that the Cosmetic Surgery Center committed negligence in failing to report "adverse events" either. Once again, plaintiff fails to offer any support for her assertion that the center "may" have been obligated to report anything and that it could be liable to her for a failure to do so.
Finally, although Ms. Tilley asserts that she was treated by an employee of the Cosmetic Surgery Center, even assuming that is the case, there is no allegation anywhere that the employee departed from accepted standards of medical practice in rendering treatment. This Court cannot ignore that the only mention of the Cosmetic Surgery Center in the complaint relates to a purported relationship with Dr. Ostad. A relationship that was refuted by admissible evidence.
If Ms. Tilley obtains evidence establishing that there was in fact a relationship between the Cosmetic Surgery Center and Dr. Ostad, this Court could consider a motion for renewal. See, CPLR 2221.
Disclosure should only be used as a vehicle for obtaining information once there is a good-faith belief that the opposing party committed an actionable wrong. It should not be used to investigate — and a party should not be forced to defend — when a plaintiff is entirely unsure of whether any wrong was committed in the first place. See, Gillinder v. Hemmes, 298 AD2d 493 (2nd Dept. 2002) (summary judgment granted although "discovery [had] not yet occurred" because mere speculation that defendant may have been negligent was insufficient to defeat motion).
In the end, in response to the Cosmetic Surgery Center's showing that it cannot be liable as a matter of law, Ms. Tilley has not demonstrated the existence of a question of material fact. Therefore, the Cosmetic Surgery Center is entitled to summary judgment dismissal.
Accordingly, it is
ORDERED that the caption is amended and "The Cosmetic Surgery Center of New York" is to be replaced with "James Reardon, M.D. d/b/a The Cosmetic Surgery Center of New York;" it is further
ORDERED that plaintiff is to file a copy of this Decision and Order with the County Clerk and with the Trial Support Office (Room 158), who are respectfully directed to update their records accordingly; it is further
ORDERED that the Ostad Defendants' motion for a change of venue is denied; it is further
ORDERED that plaintiff's cross-motion to retain venue in New York County is denied as moot; it is further
ORDERED that the motion by James Reardon, M.D. d/b/a The Cosmetic Surgery Center of New York for summary judgment is granted and the Clerk is directed to enter judgment in his favor and the remainder of the action is to proceed.
This constitutes the Decision and Order of the Court.