SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ========================================X Index No. 500510/2014 RINAT DRAY, Plaintiff, NOTICE OF CROSSMOTION against AND OPPOSITION TO PLAINTIFF'S MOTION STATEN ISLAND UNIVERSITY HOSPITAL, LEONID GORELIK, METROPOLITAN OBGYN ASSOCIATES, P.C., and JAMES J. DUCEY, ========================================X Defendants. COUNSELORS: PLEASE TAKE NOTICE that, upon the annexed affirmation of ELAN SCHEFFLEIN, dated August 15, 2018, the exhibits annexed thereto, and upon all pleadings and proceedings heretofore had herein, defendants LEONID GORELIK, M.D. and METROPOLITAN OBGYN ASSOCIATES P.C., by and through their attorneys, BELAIR & EVANS LLP, will move this Court, at the courthouse located at 360 Adams Street, Brooklyn, New York, on the 6th day of September, 2018, at 9:30 o'clock in the forenoon of that day, or as soon thereafter as counsel may be heard, for an Order: (1) denying Plaintiff's motion to amend the Complaint; (2) granting defendant reimbursement of attorney's fees and costs for this motion; and (3) for such other and further relief as this Court may deem just and proper. PLEASE TAKE FURTHER NOTICE, that answering papers, if any, are required to be served on the undersigned at least seven (7) days 1 of 15
prior to the return date of this motion, as provided in CPLR 2214(b). Dated: New York, New York August 15, 2018 Yours etc., BELAIR & EVANS LLP By: Elan Schefflein Attorneys for Defendants LEONID GORELIK, M.D. and METROPOLITAN OBGYN ASSOCIATES P.C. 90 Broad Street 14th ploor New York, New York 10004 (212) 3443900 To: Michael M. Bast, PC Attorney for Plaintiff 26 Court Street Suite 1811 Brooklyn, NY 11242 Gerspach Sikoscow, LLP Attorneys for Defendants STATEN ISLAND UNIVERSITY HOSPITAL and JAMES J. DUCEY 40 Fulton Street, Suite 1402 New York, NY 10038 (212)4220700 2 2 of 15
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ========================================X Index No. 500510/2014 RINAT DRAY, against Plaintiff, AFFIRMATION IN SUPPORT STATEN ISLAND UNIVERSITY HOSPITAL, LEONID GORELIK, METROPOLITAN OBGYN ASSOCIATES, P.C., and JAMES J. DUCEY, ========================================X Defendants. ELAN SCHEFFLEIN, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the truth of the following, under penalty of perjury: 1. I am associated with the firm of BELAIR & EVANS LLP, attorneys of record for LEONID GORELIK, M.D. ("Dr. Gorelik" and METROPOLITAN OBGYN ASSOCIATES P.C. ("Metropolitan") (collectively "Defendants"). As such, and from review of the file maintained in this office, I am fully familiar with the facts and circumstances detailed herein. 2. I submit this affirmation in opposition to Plaintiff's motion and in support of the within crossmotion for an Order: (1) denying plaintiff's motion to amend the Complaint; (2) granting defendant reimbursement of attorney's fees and costs for this motion; and (3) for such other and further relief as this Court may deem just and proper. 3 of 15
BRIEF FACTUAL HISTORY 3. Defendant Dr. Gorelik was employed by the defendant Metropolitan. As part of that practice, approximately every fourth or fifth day, as part of their rotation, Dr. Gorelik is assigned to deliver Metropolitan's patients at Staten Island University Hospital. Accordingly, on July 26, 2011 that was his assignment. Mrs. Dray was admitted in the early morning hours of July 26. At that time, Dr. Gorelik's examination revealed that the patient was dilated three centimeters, her cervix was 90% effaced, and the fetal vertex was at a 2 station. The estimated date of confinement (expected delivery date) had been July 15, 2011. The estimated gestational age on July 26, 2011 was 41.4 weeks. 4. As with all patients, the patient Rinat Dray was put on an external fetal heart monitor, which assesses the time and duration of the maternal contractions as well as the fetal heart tracings. 5. A spontaneous rupture of Mrs. Dray's membranes occurred at about 10:39 A.M. on July 26, 2011. Mrs. Dray's amniotic fluid presented with heavy meconium. This indicated to Dr. Gorelik that the fetus had had a bowel movement, which could be an indication of fetal distress. The patient was carefully and continuously monitored by the medical staff. 6. About 1:00 P.M. the fetal heart tracing showed a non 2 4 of 15
reassuring fetal heart rate pattern. This is often an indication that the fetus was experiencing periods of distress and perhaps hypoxia. If a fetus is suffering from hypoxia in utero and the condition does not resolve within a certain period of time, permanent neurological damage and/or death could occur to the fetus. 7. At or about 1:30 P.M. on July 26, 2011, Dr. Gorelik was sufficiently worried about the fetal condition that he advised the mother to have a Cesarean section. Although there are risks of injury attendant to a Cesarean section for the mother, they are minimal compared to significant risks to the fetus if it was exposed to hypoxia for a significant period of time. 8. Due to these tracings, Dr. Gorelik advised Mrs. Dray that it could be in the fetus' best interests to be delivered expeditiously via Cesarean section. The Plaintiff refused. Given the dilemma that Dr. Gorelik was experiencing, namely, being of the opinion that a prompt Cesarean section would be in the best interests of preventing serious permanent harm to the fetus and Mrs. Dray's refusal to consent to such a procedure, Dr. Gorelik sought guidance from his superior, Dr. James Ducey. Dr. Ducey is the Director of Obstetrics at Staten Island University Hospital and has additional certification in maternalfetal medicine. 9. Dr. Ducey reviewed the patient's chart and the fetal heart monitoring strips and agreed with Dr. Gorelik's assessment 3 5 of 15
that an emergency Cesarean section should be performed to avoid a serious risk of harm to the fetus. He also attempted to convince the patient Rinat Dray of the need for a Cesarean section. After the patient again refused, Dr. Ducey conferred with the hospital attorney, Arthur Fried, an employee of the hospital. 10. Mr. Fried was informed of all the relevant facts by Dr. Ducey to wit: the patient's refusal to consent, and his opinion that an immediate Cesarean section was needed to prevent the grave risk of severe neurological damage to the fetus. 11. Dr. Ducey in consultation with the hospital attorney, Mr. Fried, decided that a Cesarean section was necessary to avoid serious and permanent damage to the fetus and overruled her refusal. 12. After consulting with Mr. Fried, at around 2:30 P.M. Dr. Ducey informed Dr. Gorelik that he was overriding Mrs. Dray's refusal to have the Cesarean section. Accordingly, the patient was taken to the operating room at approximately 2:35 P.M. and a Cesarean section was performed by both Dr. Ducey and Dr. Gorelik. 13. During the course of the Cesarean section, Mrs. Dray sustained a bladder injury which was immediately recognized and repaired by urologists at that time. 6 of 15
PROCEDURAL HISTORY 14. Plaintiff filed an original summons and complaint on January 22, 2014. (Exhibit A). This was one day short of the statue of limitations for medical malpractice claims and untimely for intentional torts. An amended summons and complaint was filed on April 11, 2014. (Exhibit B). On May 8, 2014, issue was joined by the defendants LEONID GORELIK and METROPOLITAN OBGYN ASSOCIATES, P.C. (Exhibit C). 15. In their Amended Complaint, plaintiff advanced five causes of actions. These causes of action arise from the allegation that Defendants performed a cesarean section on plaintiff without her consent. The surgery was performed in a successful effort to save the life of her healthy fullterm son. 16. Of the five causes of action, all of which involve and arise out of the Caesarean section performed during the period at issue, the initial two causes of action explicitly invoke theories of intentional tort. The remaining three causes of actions related to "Lack of Informed Consent," "Statutory Violation," and "Punitive Damages." 17. On or about August 14, 2014, and in supplemental affidavits thereafter, Defendants moved to dismiss the claims in the Amended Complaint pursuant to CPLR 3211 as untimely and improperly pled. (Exhibit D). Specifically, that the causes of action either sounded in intentional tort and thus were untimely (first, second, and third 7 of 15
causes of action), or were inapplicable to Defendants (fourth and fifth causes of action). 18. The motions resulted in three decision by the Honorable Laure Jacobson dated May 12, 2015, October 29, 2015, and May 10, 2016. (Exhibits E, F, and G, respectively). 19. Judge Jacobson's decisions dismissed plaintiff's causes of actions relating to "Ordinary Negligence" and "Medical Malpractice" regarding the unconsentedto surgery because they sound in Intentional Tort and thus were untimely pled beyond the oneyear Statute of Limitations. The Judge also dismissed the fifth cause of action for punitive damages. 20. Judge Jacobson left in tact the questions as to whether a cesarean was necessary in the first place and whether a bioethics panel/patient advocate should have been called. 21. Confusingly, Judge Jacobson also permitted the plaintiff's fourth cause of action under Public Health Law 2803c(3) (e) and 10 NYCRR 403.7, which require nursing homes and hospitals to abide by the Patient's Bill of Rights. As Defendants were private attendings and therefore not a nursing home or hospital, we appealed. 22. On December 4, 2017, plaintiff's appeal of Judge Jacobson's dismissal of the causes of action related to unconsented to surgery and Defendant's appeal of the inapplicable fourth cause of action related to nursing homes and hospitals was heard by the Appellate Division, 2nd Department. 8 of 15
23. In the first decisions dated April 4, 2018, the Appellate Division denied plaintiff's claim to reinstate the unconsentedto surgery claims finding that they sounded in intentional tort and thus were untimely pled. (Exhibits H). In the second decision dated same, the Appellate Division granted Defendant's motion to dismiss the fourth cause of action as it plainly did not apply to a private physician or his practice. (Exhibits I). Defendants did not request more relief but were delighted that the Appellate Division awarded costs to Defendant due to the frivolity of plaintiff's motion. 24. Thus, at the end of extensive motion practice, the rulings of the Supreme Court and the Appellate Division, plaintiff was left with only a cause of action as to whether a cesarean section was necessary in the first place, whether a bioethics panel/patient advocate should have been summoned, and if malpractice was committed when the plaintiff's bladder was lacerated (neither side moved for summary judgment on this claim). LEGAL ARGUMENT 25. As plaintiff has already been denied relief from her many causes originally pled, she is now attempting to amend the allegations to revive the case. By alleging improper claims at this late stage after significant discovery and Appellate rulings, with claims that have nothing to do with Defendants, and wherein the statute of limitations expired, plaintiff is once again wasting the court and Defendant's time and money. Therefore, not only should the plaintiff 7 9 of 15
be denied relief, but they should be required once again to pay for Defendants fees and costs. 26. The plaintiff should not be permitted to amend their answer at this stage due to the overwhelming prejudice it would cause to defendants. By plaintiff's own admission, he became aware of the existence of a protocol related to managing maternal refusals when codefendant submitted it in an affidavit in 2014. Therefore, he has decided to wait four years, and after significant discovery and motion practice, both at the Supreme and Appellate levels, before amending the complaint. These new claims could have been plead without difficulty earlier. The doctrine of latches and prejudice prevent plaintiff from amending and asserting new claims at this late stage. 27. A delay of merely one year when significant practice has already taken place has been held as a significant prejudice to prevent amending the complaint. O'Hara v Tidewater Oil Co., 23 A.D.2d 870 (2d Dep't 1965). In O'Hara, "the court pointed to all the pretrial procedures that would now have to attend the belated claim, such as dismissal motion, bill of particulars procedures, disclosure devices, and even appeals from those steps." New York Practice, David Siegel, 2005, fourth ed. 28. As this court is aware, several motions and crossmotions to dismiss were converted and supplemented to become motions for summary judgment, with decisions in the Supreme Court. Additionally, the appeal from those three decisions was fully submitted, heard, and decided by the Appellate Division, 2nd Department. Discovery has also 8 10 of 15
largely completed, with numerous depositions have already occurred including that of the plaintiff and Dr. Gorelik. 29. To permit the plaintiff to amend their complaint at this stage would start the litigation anew. As will be explained infra, the new amendments have no basis in fact or law to assert against Dr. Gorelik and Metropolitan. Therefore, if this amendment were to proceed, defendants would immediately move to dismiss, and later for summary judgment. Additionally, plaintiff would need to be redeposed, as these new allegations were not covered in the previous depositions. Lastly, Dr. Gorelik has already been deposed on two separate occasions (and plaintiff has moved for a third); thus to require him to clear undergo a fourth supplemental deposition would be an unnecessary waste of time and resources for the witness. The doctrine of latches as well as prejudice should prevent the plaintiff from amending the case four years later merely because most of their claims were struck down by the Supreme Court and Appellate Division. Therefore, the amendment should not be granted. 30. Similarly, the plaintiff should not be allowed to amend the complaint for causes of actions in which the statute of limitations has already run. The plaintiff is attempting to bring new causes of action for fraud, breach of contract, from the Consumer Protection from Deceptive Acts, New York State Human Rights Law, New York City Human Rights Law, and New York Discrimination Law. All of these alleged claims accrued on July 26, 2011. 9 _ 11 of 15
31. A claim pursuant to the New York State Human Rights Law, New York City Human Rights Law, or the New York Discrimination Law must be filed one year from the date of accrual. See: New York Department of Labor; New York City Human Rights Commission. These claims must also be made specifically to the New York Division on Human Rights, the Federal EEOC, or the New York City Commission on Human Rights. Therefore, the time to make a claim pursuant to these actions has expired. Further, the statute of limitations for such claims is three years and has likewise expired. 32. Similarly, the claim of a violation of Consumer Protection from Deceptive Acts has a statute of limitations of three years. See: CPLR 214(2); Gaidon v Guardian Life Ins. Co of Am., 96 N.Y.2d 201 (2d Dep't 2001). The remaining two new claims of fraud and breach of contract have 6year statutes of limitations. See: CPLR 213(8) and 213(2), respectively. Thus, the statute of limitations for all of these claims has expired. The plaintiff will not be able to rely upon the relationback doctrine to amend the complaint because the prior allegations did not give notice to the new allegations, would cause substantial prejudice, and the claims are not meritorious. See: CPLR 203(f); CPLR 3025(b); see also Buran v Coupal, 87 NY2d 173 (2d Dep't 1995). 33. The complaint should also not be amended because the allegations are plainly without merit. The new allegations revolve around the "Managing Maternal Refusals" policy of codefendant hospital, of which Dr. Gorelik was not aware of and therefore could 10 12 of 15
not be expected to have acted in accordance with.1 Defendants were not a party to the consent forms that plaintiff signed that allegedly contradicted this hospital policy. The only form that Dr. Gorelik did sign, plaintiff's "Exhibit F", was not signed by plaintiff. Plaintiff even sent a letter rejecting their consent forms which stated they could not guarantee a vaginal delivery. (See Exhibit K). Therefore, there is no merit to any allegations of breach of contract, fraud, or violation of the Consumer Protection from Deceptive Acts. In plaintiff's papers requesting the amendment, he repeatedly refers to codefendant hospital's deceptive acts. However, he never alleges that Dr. Gorelik or Metropolitan were a party to any of these acts. That is because he cannot. 34. Absurdly, plaintiff accuses defendants of violating several discrimination and human rights laws. These laws apply to hospitals, and in the case of New York City Human Rights Law, public housing. Putting aside the obvious problem that there are no allegations that she was denied housing, the other violations clearly only relate to codefendant hospital. Dr. Gorelik and Metropolitan are not employees of the hospital, nor have the authority in fact or theory to deny someone admission to the hospital. In her motion, plaintiff once again only states that the hospital committed these actions. It is clear that these amendments are being improperly applied to Dr. Gorelik and Metropolitan. 1 See Exhibit J: except of the EBT of Dr. Gorelik in which he testified that he was unaware of the policy 11 13 of 15
35. While leave to amend pleadings should be liberally granted (see CPLR 3025 [b); Lee v Health Force, 268 AD2d 564, (2d Dep't 2000), citing Zabas v Kard, 194 AD2d 784, (2d Dep't 1993), "it is equally true that the court should examine the sufficiency of the merits of the proposed amendment" (Zabas v Kard, supra at 784; see Intagliata v Peelle Co., 227 AD2d 450, (2d Dep't 1996). Where, as here, the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave to amend should be denied (see Glassman v ProHealth Ambulatory Surgery Ctr., 23 AD3d 522, (2d Dep't 2005); Arnold v Siegel, 296 AD2d 363, (2d Dep't 2002); Lee v Health Force, supra; Intagliata v Peelle Co., supra; Zabas v Kard, supra) quoting Morton v. Brookhaven Mem. Hosp., 32 A.D.3d 381, (2d Dep't 2006). 36. As plaintiff is clearly bringing frivolous amendments in a knowingly futile attempt to revive the case, they should be required reimburse Defendant's attorneys fees and costs to oppose their motion. Your deponent even sent a letter to plaintiff asking for their good faith or reasonable basis to amend the complaint against defendants. See Exhibit L. In response, your deponent agreed to meet with attorney for plaintiff, Mr. Bast. He admitted he had no reasonable or good faith basis for bringing the amended allegations against Dr. Gorelik and Metropolitan. 12 14 of 15
37. As noted infra, this is not the firsttime plaintiff has done this. The Appellate Division awarded Defendants costs and fees because plaintiff's amended complaint's fourth cause of action clearly would only relate to the codefendant hospital (and even then, the Court struck it down). A clear pattern has emerged in which plaintiff has become a vexatious litigant filing frivolous allegation. The plaintiff should be forced to bear the brunt of any costs associated with opposing this new, yet again meritless motion. 38. If, however, the Court were to grant plaintiff's motion, they should be required to pay for the new discovery costs of their unnecessarily tardy amendment. See: Mirabella v Banco Industrial de la Republica Argentina, 34 A.D.2d 189 (1st Dep't 1989). WHEREFORE, it is respectfully requested that the Court grant the within motion for an Order: (1) denying plaintiff's motion to amend the Complaint; (2) granting defendant reimbursement of attorney's fees and costs for this motion; and (3) for such other and further relief as this Court may deem just and proper. Dated: New York, New York August 15, 2018 Elan Schefflein 13 15 of 15