ARLENE KRETZMER, individually and as Administratrix of the ESTATE OF ROBERT KRETZMER, deceased

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1 SHORT FORM ORDER SUPREME COURT STATE OF NEW YORK Present: HON. JOHN P. DUNNE. Justice TRIAL/IAS, PART 8 ARLENE KRETZMER, individually and as Administratrix of the ESTATE OF ROBERT KRETZMER, deceased Plaintiff Index No. 4171/03 Seq. No., 2, 3 Motion submission: 9/23/05 -against - CHETAN SATI, D.O., THOMAS M. ALDERSON, M.D., P.C., TRAUBE, MARSH & PLA WES, M.D., P.C., and SIDNEY PLA WES, M. Defendant The following papers read on this motion: Notice ofmotion... Affirmation.... Reply....

2 Motion by defendant Thomas Alderson, M.D. for an order pursuant to CPLR 3211(a)(5) dismissing the second and third causes of action as against him individually, on the grounds that they are barred by the Statute of Limitations is granted. The motion of defendants Traube, Marsh & Plawes, M., P.C. and Sidney Plawes, M., and the cr.oss-motion by defendants Chetan Sati, D. Thomas Alderson, M., and Thomas M. Alderson, M., P., to dismiss the second and third causes of action pursuant to CPLR 3212 on the grounds that plaintiff's decedent experienced no pain or suffering, and to disqualify plaintiff's counsel, are denied. This action is brought by plaintiff, as administratrix of the estate of Robert Kretzmer, for wrongful death, pain and suffering, and derivatively by herself for loss of services and society, arising out of the alleged medical malpractice of the defendants. On November , plaintiffwas seen by Dr. Sati, an employee of Thomas M. Alderson, M., P. C. There is no evidence that he was seen by Dr. Alderson that day. The purpose of the deceased' s visit was to receive a company physical exam. During the course of his examination Dr. Sati conducted an EKG

3 which detected a heart murmur and referred the deceased to defendants Traube Marsh & Plawes, M., P.C. and Sidney Plawes for an echocardiogram. This test was performed on or about November , and the results reported back to Thomas M. Alderson, P., on or about November , where they were reviewed by Dr. Sati. The report contained findings including thickening of the aortic valve leaflets and several other abnormalities. It is unclear whether Dr. Sati discussed these findings with the deceased or not, but Dr. Sati determined that the findings only warranted following the patient on an annual basis and did not refer the deceased to a cardiologist for further followup or treatment. On March , Robert Kretzmer suffered a heart attack and died. It is alleged that Dr. Sati' failure to refer the deceased for followup and treatment, given the results of his echocardiogram, as well as Dr. Alderson s failure to followup abnormal results of prior EKG exams in August 1999 and earlier, were a departure from accepted medical practice and constituted negligence. This action was commenced on or about March 17, The first cause of action alleges wrongful death. The second cause of action alleges malpractice, and the third cause of action is a derivative action brought by the deceased' s spouse. The moving defendant, Dr. Alderson, seeks an order pursuant to CPLR 3211(a)(5) dismissing the second cause of action as barred by the Statute of

4 Limitations and dismissing the third cause of action as it is brought derivatively. (Wittrock v. Maimonides Medical Center-Maimonides Hosp. 119 AD2d 748; Lif v. Schildkrout 49 NY2d 622) CPLR 214-a provides: An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of... The cause of action accrues at the time of the commission of the alleged act of malpractice. (Davis v. City of New York 38 NY2d 257; Gaspard v. Herard, 20 AD3d 504) In as much as Dr. Alderson last saw the deceased on August 23, 1999 the second cause of action alleging medical malpractice brought against him personally in March 2003 is barred by the Two year and six month statute of limitations and must be dismissed. Plaintiff's malpractice claim as against Dr. Alderson personally is not saved by Dr. Alderson s majority ownership interest in the professional corporation which employed himself and Dr. Sati, among others. As observed by the court in Polokoffv. Palmer 190 AD2d 897: The fact that a physician is a shareholder, officer or employee of a professional service corporation does not

5 make him vicariously liable for the malpractice of another doctor who is an officer, director or employee of the corporation (Hill v St. Clare s Hosp., 67 NY2d 72 79; see, Business Corporation Law g 1505 (aj; Connell v Hayden, 83 AD2d 30, 49-59). See also Hill v. St. Clare s Hosp. 67 NY2d 72; Yaniv v. Tauh 256 AD2d 273; Engelhart v. Schachter 235 AD2d 387. While it is true that an exception to this statutory protection exists, and liabilty may arise out of conduct by the shareholder himself, or someone acting under his direct supervision while rendering professional services on behalf of the corporation (see re Associates Co. v. Cohen, Stracher Bloom, P. 103 AD2d 130), there has been no such showing here. Indeed, the testimony of both Dr. Sati and Dr. Alderson is clear that Dr. Sati and not Dr. Alderson reviewed the echocardiogram report. The testimony further establishes that Dr. Alderson did not regularly review the charts of patients seen by Dr. Sati and did not directly supervise Dr. Sati. The testimony established that Dr. Sati only consulted with Dr. Alderson on what he considered to be problem cases. Accordingly, the defendant met his burden of demonstrating that the Statute of Limitations bars the action as against Dr. Alderson personally. Thereafter, the burden shifted to the plaintiff "to aver evidentiary facts

6 establishing that the case falls within an exception to the Statute of Limitations. (Assad v. City of New York 238 AD2d 456; Massie v. Crawford, 78 NY2d 516) As discussed above, plaintiff has failed to meet this burden in that there has been no showing that Dr. Alderson personally supervised Dr. Sati' s treatment of the deceased. Neither is there any claim that can be made in this case that there was a continuous course of treatment. In addition, the cases cited by plaintiff are inapposite in that they involve questions of agency among otherwise unrelated physicians, and not doctors practicing under a professional corporation who are entitled the limited liability protection that such an organizational method accords. (We re Associates Co. v. Cohen, Stracher Bloom, P., supra. Accordingly, the second and third causes of action are dismissed as against Dr. Alderson personally. Defendants have moved pursuant to CPLR 3212 for an order granting them summary judgment dismissing the second cause of action regarding pain and suffering on the grounds that the decedent' s heart attack was without warning and that he lost consciousness within seconds, thereby precluding a finding that he actually experienced pain and suffering. (Ramos v. Shah 293 AD2d 459) There motion is supported by the affidavit of Bruce H. Pinkernell, M., to this effect. It is well settled that summary judgment is a drastic remedy which

7 should not be granted where there is any doubt about the existence of a triable issue of fact. (Bhatti v. Roche, 140 AD2d 660) It is nevertheless an appropriate tool to weed out meritless claims. (Lewis v. Desmond 187 AD2d 797; Gray v. Bankers Trust Co. of Alhany, N. A. 82 AD2d 168) Even where there are some issues in dispute in the case which have not been resolved, the existence of such issues will not defeat a summary judgment motion if, even when the facts are construed in the nonmoving party s favor, the moving party would still be entitled to relief. (Brooks v. Blue Cross of North eastern New York, Inc. 190 AD2d 894) Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor. (CPLR 3212 (bj) The burden then shifts to the non-moving part. To defeat the motion for summary judgment the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. (CPLR 3212, subd (bj). (See also Colonial Aluminum Sales, Inc. 66 NY2d 965; GTF Marketing, Inc. Zuckerman v. City of New York 49 NY2d 557) The non-moving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. (Mgrditchian v. Donato 141 AD2d 513) Conclusory allegations are insufficient (Zuckerman v. City of New York, supra.

8 and the defending part must do more than merely parrot the language of the complaint or bill of particulars. There must be evidentiary proof in support of the allegations. (Fleet Credit Corp. v. Harvey Hutter Co., Inc., 207 A.D.2d 380; Toth v. Carver Street Associates 191 AD2d 631) On such a motion the court must draw all reasonable inferences in favor of the nonmoving party. (Rizzo v. Lincoln Diner Corp. 215 AD2d 546) The role of the Court in deciding a motion for summary judgment is not to resolve issues of fact or to determine matters of credibilty, but simply to determine whether such issues of fact requiring a trial exist. (Dyckman v. Barrett 187 AD2d 553; Barr v County of Alhany, 50 NY2d 247, 254; James v. Alhank 307 AD2d 1024; Heller v. Hicks Nurseries, Inc. 198 AD2d 330) The Court need not, however, ignore the fact that an allegation is patently false or that an issue sought to be raised is merely feigned. ( Sexstone v. Amato 8 AD3d 1116) The Court may also search the record and grant summary judgment in favor of a nonmoving part with respect to a cause of action or issue that is the subject of a motion for summary judgment without the necessity of a cross-motion. (CPLR 3212(b); Katz v. Waitkins, 306 AD2d 442) Applying these principles to the instant matter, the motion must be denied. Defendant' s met their burden of establishing there right to judgment as a matter of

9 law on the second cause of action. Accordingly, the evidentiary burden then shifted to the plaintiff. Plaintiff has met her burden to come forward with evidence which raises a triable issue of fact via the affidavit of Jeffrey A. Leonardis, M., who expresses the opinion that the deceased indeed experienced a significant period of pain and suffering prior to his demise. Accordingly, the motion must be denied. Finally, defendant's move to disqualify the plaintiff's counsel, who happens to be her son-in-law, on the grounds that he is a necessary witness and his continued representation would violate the advocate/witness rule. 22 NYCRR g (DR 5-102) provides in relevant part: A lawyer shall not act, or accept employment that contemplates the lawyer s acting, as an advocate on issues of fact before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client... As observed by the Court in SkifMurray v. Murray, 3 AD3d 610: TVe advocate-witness rule requires an attorney to withdraw from pending litigation if it appears that his or her testimony is "necessary" and he or she "ought to be

10 called as a witness" (Code of Professional Responsibility DR (a) (22 NYCRR ); see Sokolow Dunaud, Mercadier & Carreras v Lacher, 299 AD2d (2002); Bullard v Coulter, 246 AD2d 705, 706 (1998)). Disqualification of an attorney during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants. Disqualification denies a party s right to representation by the attorney of its choice (see Matter of Ahrams (John Anonymous), 62 NY2d 183). This right is not absolute, and may be overridden when necessary to protect a compelling public interest. It is nevertheless a valued right and any restrictions must be carefully scrutinized. & S Hotel Ventures Ltd. Partnership v. 777 H. Corp. 69 NY2d 437) Any doubt concerning the necessity for the attorney s testimony should be resolved in favor of disqualification. (Zagari v. Zagari 295 AD2d 891) The test to be applied is the "necessity" of the attorney s testimony and whether he " ought" to be called as a witness. (Price v. Price 289 AD2d 11; Sokolow, Dunaud, Mercadier Carreras LLP v. Lacher 299 AD2d 64) This burden is met where the attorney is an essential witness. (Korfmann v. Kemper Nat. Ins. Co. 258 AD2d 508) Disqualification is inappropriate where the

11 \)'j attorney s testimony is not necessary, such as where it is merely cumulative. (People v. Somerville 249 AD2d 687) Applying these principles to the instant application, it is clear that the impact of decedents death upon his daughter (the attorney s wife) and granddaughter can easily be testified to by the deceased' s daughter and other family members. The testimony of counsel, if admissible at all, is merely cumulative and is not necessary to the plaintiff's case. Accordingly, the application to disqualify plaintiff's counsel is denied. It is so ordered. Dated: JI/1J EN1'EREO u COUN1' SSA p.k' S OFF\"' co\jn1'l cu

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU. Plaintiff,

SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. DANIEL PALMIERI Acting Justice Supreme Court ---------------------------------------------------------------------