Palmer v Cervone 2017 NY Slip Op 32476(U) October 10, 2017 Supreme Court, Suffolk County Docket Number: Judge: Sanford Neil Berland Cases

Transcription

1 Palmer v Cervone 2017 NY Slip Op 32476(U) October 10, 2017 Supreme Court, Suffolk County Docket Number: Judge: Sanford Neil Berland Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's ecourts Service. This opinion is uncorrected and not selected for official publication.

2 [* 1].. SHORT FORM ORDER INDEX NO.: SUPREME COURT - STA TE OF NEW YORK PART 6- SUFFOLK COUNTY PRESENT: Hon. Sanford Neil Berland. A.J.S.C. BOBBI SUE PALMER, Plaintiff( s ), against- AGOSTINO CERVONE, M.D., MARY JACOBS, R.N.F.A., PECONIC SURGICAL GROUP, P.C., EASTERN LONG ISLAND HOSPITAL and PECONIC BAY MEDICAL CENTER, Defendant( s). ORIG. RETURN DATE: NOVEMBER 19, 2015 MOT. SEQ.#: 008 WON ORIG. RETURN DATE: DECEMBER 15, 2015 MOT. SEQ.#: 009 MD ORIG. RETURN DATE: JUNE 14, 2016 MOT. SEQ. #: 0 I 0 MOT D ORIG. RETURN DATE: OCTOBER 11, 2016 MOT. SEQ.#: 011 MD PLTF AITORNEY: IRA M. PERLMAN, ESQ. and ROBERT D. ROSEN, ESQ. 60 Cuttermill Road? Suite 206 Great Neck, New York I DEFTS' AITORNEYS: FUMUSO, KELLY, SWART, FARRELL, POLIN AND CHRISTESEN, LLP Attorneys for Eastern Long Island Hospital 110 Marcus Boulevard Hauppauge, New York GABRI!ELLE & MARANO, LLP Attorneys for Peconic Surgical Group, PC and Agostin-0 Cervone, M.D. 100 Quentin Roosevelt Boulevard Garden City, New York Upon the reading and filing of the fo llowing papers in rhis matter: (1) Amended Notice of Motion by defendant Eastern Long Island Hospital, dated June 14, 2016, and supporting papers; (2) Answering Affidavits made by plaintiff, dated June 29, 2016; (3) Replying Affidavits made by defendant Eastern Long island Hospital, dated July 25, 2016, and supporting papers; it is,

3 [* 2].. Index No.: Page2 ORDERED that the motion by defendants Agostino Cervone M.D. and Pcconic Surgical Group, P.C. (Mot. Seq. #008) to compel plaintiff to provide certain authorizations is hereby withdrav.11 pursuant to a stipulation so-ordered by Hon. Sanford N. Berland dated September 19, 20 I 7; and it is further ORDERJ:,"D that the motion made by defendant Eastern Long island Hospital (Mot. Seq. #009) is hereby denied as moot; and it is further ORDERED that the motion by defendant Eastern Long Island l lospital (Mot. Seq. # 0 I 0) for an order pursuant to CPLR lb] is granted to the extent indicated below; and it is further ORDERED that the motion by defendants Agostino Cervone, M.D. and Peconic Surgical Group. P.C., made pursuant to CPLR 3024 [c] to strike certain prejudicial. scandalous, inflammatory and irrelevant language contained in plaintiffs Bill of Particulars dated May I, 2012 and plaintiffs Supplemental/Amended Bill of Particulars dated April 25, 2016 is denied; and it is funher ORDERED that the remaining parties to the action are to appear for a previously scheduled compliance conference on Wednesday, November 8, 2017 at 9:30 a.m. in Part 6 of the Supreme Court located at the Cromarty Court Complex at 2 10 Center Drive in Riverhead, New York. The plaintiff Bobbi-Sue Palmer commenced this action against the defendants Agostino Cervone, M.D., Mary Jacobs, R.N.f.A.~ Pc1.:onic Surgical Group, P.C., Eastern Long Island Hospital and Peconic Bay Medical Center to recover damages for medical malpractice and lack of informed consent. By her complaint. the plaintiff alleges, among other things, that the defendants were negligent in the performance of a laparoscopic cholccystectorny on February 10, The plaintiff further alleges that during the surgery at Eastern Long Island Hospital, Dr. Cervone clipped, or transected, her common bile duct, which resulted in bile duct obstruction, bile leakage, obstructive jaundice and other complications and necessitated subsequent surgeries to repair the transsection. Defendants Mary Jacobs. R.N.F.A. and Pcconic Bay Medical Center were previously discontinued from the action. MOTION SEQUENCE OlO Defendant Eastern Long Island Hospital (ELIH), based upon a partially executed stipulation discontinuing the action with prejudice as against them only, now seeks an order pursuant to CPLR (b) "so-ordering" the Stipulation of Discontinuam:e as against them. At the time the motion was served, the stipulation, which is dated ApriJ 25, 2016, had been executed by the p l ~1inti ff and the moving defendant, but no other parties. CoW1sel for defendants Dr. Cervone and Pcconic Surgical Group, P.C. submiued an Affirmation in Opposition to "ensure that their statutory rights including, but not limited to, General Obligation I,aw , CPLR Article 16, and all other applicable scct\ons/provisions of New York State Law" arc preserved should EL.TH be discontinued from the action. A plaintiff may discontinue an action against a party pursuant to CPLR 32 l 7laJ by filing with the Clerk of the Court a written stipulation signed by the attorneys of record for all the parties.

4 [* 3] index No.: Page 3 J lowever, where, as here, one or more parties in the action fail to execute the stipulation, an application may be made pursuant to CPLR 3217(b] seeking an order of the court discontinuing the action. Although the Court has the discretion to grant or deny an application to discontinue made pursuant to CPLR 3217 [bl (Tucker v Tucker, 55 NY2d 378, 449 NYS2d 683 l l 982)), in the ahsence of special circumstances, particularly prejudice to the substantial rights of any of the parties to the action, a motion for a voluntary discontinuance should be granted (see Blackwell v Mikevin Mgmt. Ill, LLC, 88 AD3d 836, 931 NYS2d 116 [2d Dept 2011 ]; Expedite Video Conferencing Servs., Inc. v Botello, 67 AD3d 961, 890 NYS2d 82 [2d Dept 2009]; Citibank v Nagrotsky, 239 AD2d 456, 457, 658 NYS2d 966 [2d Dept I 997]). In support of their motion, ELIH argues that as nu cross claims have been asserted against them by any of the remaining defendants, and as plaintiff has agreed to discontinue her claims against them, the respective rights of the remaining parties will not be prejudiced by permitting the action to be discontinued against them only. The Court at,'tees. Although in certain instances a discontinuance can operate as the equivalent of a release or covenant not to sue within the meaning of GOL , thereby reducing the plaintifrs recovery from the remaining detendants while insulating the discontinued parties from claims for contribution under CPLR Article 14 and also affecting the allocation and recovery of non-economic damages under CPLR Article 16 (cf Tereshcl1enko v Lynn, 36 AD3c , 828 NYS2d 185 [2d Dept 2007J; Ha11na v Ford Motor Co., 252 AD2d 478, 479, 675 NYS2d 125 [2d Dept 19981; Killee11 v Reinhardt, 71 AD2d 851, 853, 419 NYS2d 175 [2d Dept 19791), pursuant to the 2007 amendment to GOL , which added subdivision [ dl, discontinuances for which no consideration or consideration of one dollar or less is paid do not have that effect. That amendment was proocrcd by the New York State Advisory Committee on Civil Practice specifically to facilitate plaintiffs voluntarily releasing '''ostensibly blameless defendants'" by removing the fear that their rccoverks against remaining defendants would be reduced (see Fleck v City of New York, 21 Misc 3d I 146[A], 875 l\ys2d 820 [Sup 2008], citing to and quoting from Report of the Advisory Committee on Civil Practice, January 2006 at 43). Where, as is understood to be the case here, no consideration was or will be received by plaintiff for the discontinuance, plaintift's award, if any, will not be reduced pursuant to subdivision LaJ ofuol (Flee/< v City of New York, supru: Calise v Heartland Med. Servs., P.C., I 8 Misc 3d 332, 334 [Sup Ct, Richmond County 2007])~ conversely, however, the defendant against whom the action has been discontinued cannot benefit from the protection of subdivision fb] UOL and therefore can, for example, be impleaded back into the case if the non-releac;ed defendants believe that there is a basis for pursuing contribution claims against them (see Calise v Heartland Med. Servs., P.C., supra). Thus, although there will be no reduction in the plaintiffs recovery as a result of this discontinuance, should the remaining defendants believe that the discontinued defendant bears some measure of culpability for the plaintiff's injuries, their remedy is to seek contribution from them, as, infer alia, by impkading the discontinued defendant back into the case as third-party defendants and having the jury determine whether or not they arc liable for contribution. Accordingly, the Court grants movant's application to the extent that plaintiff's complaint is hereby discontinued a.<: against defendant ELIH only, without prejudice to the right of each of the remaining defendants to pursue contribution from the discontinued.defendant, as hy l'iling and serving a third-party summons and complaint asserting claim(s) for contribution against the discontinued defendant or otherwise. Counsel for defendant El,lH is directed to serve a copy of this order upon the Calendar Clerk.

5 [* 4] Index No.: Pagc4 MOTION SEQUENCE 011 Defendants Agostino Cervone, M.D. and Peconic Surgical Group, P.C. seek to strike certain language contained in plaintiff's Rill of Particulars and Amended Bill of Particulars as prejudicial, scandalous, int1ammatory and irrelevant pursuant to CPLR 3024 [cl. Specifically, movants seek to strike the words "reckless/recklessly" and/or careless/carelessly" from in excess of 18 paragraphs of the aforementioned papers. Plaintiff opposes the motion as untimely. Plaintiff further argues that the words of issue are used to amplify the alleged acts of malpractice and negligence that constitute the claims asserted by her and as such, the words arc permissible and not prejudicial. Pursuant to CPLR 3024lb], ''la] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." This rule is applicable to bills of particulars as well (see Aronis v TLC Vision Ctrs., Ille., 49 AD3d 576, 578, 853 NYS2d 621 [2d Dept 2008]). In reviewing a motion pursuant to CPLR 3024, "the inquiry is whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action." (see Irving v Four Seasons Nursing & Rehab. Ctr., 121 J\03d 104 6, 995 NYS2d d Dept 2014]). Matters that arc unnecessary to the viability of the cause of action and would cause undue prejudice to the defendants should be stricken from the pleading (Irving v Four Seasons Nursing & Rehab. Ctr., supra; Kinzer v Bederman, 59 AD3d 496, 873 NYS2d 692 l2d Dept 2009]). Further, pursuant to CPLR 3024lcJ, "[a] notice of motion under this rule shall be served within twenty days after service of the challenged pleading... " llere, it is undisputed that plaintiff served her Bill of Particulars on May I, 2012, and that defendants motion to strike (Mot. Seq. # 011) was not filed until September 22, 2016, more than four years after service of the Bills of Particulars. Clearly, defendants' time to move to strike certain language found in the Rill of Particulars has expired. However, it is well-settled that: [F)lexibility on the time question is especially appropriate for the motion to strike under CPLR 3024l b ). If the matter in the pleading is prejudicial or scandalous and irrelevant, it is as much so later in the case as it is at Lhc outset. It would be preferable for the objectant to make the CPLR 3024fbl motion early, but if there is really substance to the objection and it is made after the expiration of the 20-day period, it can still be entertained by the court. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3024:5; see also Szolosi v Long Is. R. R. Co., 52 Misc2d l 081, 1082, 277 NYS2d 587 (Sup Ct, Suffolk County 1967). Thus, as defendants have moved pursuant to CPLR 3024[b] to strike language on the ground that the language is scandalous, prejudicial and unnecessary, the court finds that the motion is timely. However, in this case, the Court docs not find the language to be prejudicial; rather, it is a permissible amplification of the claimed negligent acts (see Roto11tfi v Vaugltan, 28 Misc 2d 656, 657, 220 NYS2d 213!Sup Ct, Nassau County 1961]. In each of the paragraphs referenced by mova.nts, the use of the adjectives and adverbs ''reckless," "recklessly," '\;areless" and "carelessly' arc followed by specific allegations of acts of negligtmce or malpracticl! and arc coordinate with the conduct plaintiff alleges. Accordingly. the motion to strike i:> denied.

6 [* 5] I Index No.: Page 5 The remaining parties to the action arc reminded that an appearance is required at a previously scheduled compliance conference on Wednesday, November 8, 2017 at 9:30 a.m. in Pan 6 f the Supreme Court located at the Cromarty Court Complex at 210 Center Drive i verhcad, 1 cw York. Dated: Riv~ HON. SANFORD l\"f,jl RF.RLAND, A.J.S.C. FlNAL DISPOSITION XX NON-FINAL DISPOSITION