Burgos v. N.Y. Presbyterian Hosp.

• Decision Date: 01 November 2017
• Citation: 65 N.Y.S.3d 45,155 A.D.3d 598
• Parties: Lucia BURGOS, Respondent, v. NEW YORK PRESBYTERIAN HOSPITAL, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 598

65 N.Y.S.3d 45

Lucia BURGOS, Respondent,

v.NEW YORK PRESBYTERIAN HOSPITAL, et al., Appellants.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 1, 2017.

Marshall Dennehey Warner Coleman & Goggin, P.C., Melville, NY (Michael P. Kelly of counsel), for appellant Joshua Robert Sonett.

Martin Clearwater & Bell LLP, New York, NY (Barbara D. Goldberg and Bruce G. Habian of counsel), for appellants New York Presbyterian Hospital, Columbia University Medical Center, Columbia Presbyterian Medical Center, Marc Bessler, Amy Stevens, as executor of the estate of Peter D. Stevens, and Daniel Davis.

Parker Waichman LLP, Port Washington, NY (Jay L.T. Breakstone of counsel), for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.

In an action to recover damages for medical malpractice and lack of informed consent, the defendant Joshua Robert Sonett appeals, and the defendants New York Presbyterian Hospital, Columbia University Medical Center, Columbia Presbyterian Medical Center, Marc Bessler, Amy Stevens, as executor of the estate of Peter D. Stevens, and Daniel Davis separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated June 3, 2015, as denied those branches of their separate motions which were pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the defendants appearing separately and filing separate briefs.

In November 2008, the plaintiff underwent an experimental bariatric surgery

, referred to as a transoral gastroplasty procedure, at New York Presbyterian Hospital/Columbia University Medical Center (hereinafter the hospital). The procedure required the insertion of a device that was developed and manufactured by nonparty Satiety, Inc. (hereinafter Satiety). During the course of the procedure, the plaintiff allegedly sustained a perforated esophagus and subsequent medical complications. The plaintiff thereafter commenced two actions, one in federal district court against Satiety (hereinafter the Satiety action), and this action in the Supreme Court, Kings County, against the defendants herein, the hospital where the procedure was performed and certain physicians. The Satiety action, which alleged, inter alia, products liability, statutory violations, and other state law tort claims, was ultimately dismissed for failure to state a cause of action (see

Burgos v. Satiety, Inc., 2013 WL 801729, 2013 U.S. Dist LEXIS 31062 [E.D.N.Y., March 5, 2013, No. 10–CV–2680 (MKB) ] ). After the dismissal of the Satiety action, the plaintiff and Satiety entered into a settlement and release agreement (hereinafter the Satiety release), wherein the plaintiff discharged "all claims" that arose out of the plaintiff's November 2008 procedure as against Satiety and, inter alia, all of Satiety's "agents, ... independent contractors, representatives, ... and all other related entities or persons who can ever be liable for the Incident." Based on the disposition of the Satierty action and the execution of the Satiety release, the defendants in this action separately moved, inter alia, to dismiss the complaint pursuant to CLR 3211(a)(1), (5), and (7). The Supreme Court, inter alia, denied those branches of the defendants' motions, and the defendants appeal.

"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v. Decolator, 121 A.D.3d 845, 847, 994 N.Y.S.2d 368 ; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; U.S. Mdse., Inc. v. L&R Distribs., Inc., 122 A.D.3d 613, 613–614, 996 N.Y.S.2d 83 ). A settlement agreement or release affecting a claim may be the basis for a CLR 3211(a)(1) motion to dismiss where the terms are clear and unambiguous and conclusively dispose of the matter (see Rudovic v. Rudovic, 131 A.D.3d 1225, 1226, 16 N.Y.S.3d 856 ; Malarkey v. Piel, 7 A.D.3d 681, 776 N.Y.S.2d 845 ).

"On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703–704, 864 N.Y.S.2d 70 ; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). However, where the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not just whether he or she has stated one (see Pincus v. Wells, 35 A.D.3d 569, 570–571, 826 N.Y.S.2d 423 ).

Pursuant to CPLR 3211(a)(5), a cause of action may be dismissed "because of ... collateral estoppel ... payment, release, [and/or] res judicata." A valid release "constitutes a complete bar to an action on a claim which is the subject of the release" ( Global Mins. & Metals Corp. v. Holme, 35 A.D.3d 93, 98, 824 N.Y.S.2d 210 ; see Centro Empresarial Cempresa S.A. v. América Móvil, S.A.B. de C.V., 17 N.Y.3d 269, 276, 929 N.Y.S.2d 3, 952 N.E.2d 995 ). "A release is a contract, and its construction is governed by contract law" ( Kaminsky v. Gamache, 298 A.D.2d 361, 361, 751 N.Y.S.2d 254 ). If "the language of a release is clear and unambiguous, the signing of a release is a ‘jural act’ binding on the parties" ( Booth v. 3669 Delaware, 92 N.Y.2d 934, 935, 680 N.Y.S.2d 899, 703 N.E.2d 757, citing Mangini v. McClurg, 24 N.Y.2d 556, 563, 301 N.Y.S.2d 508, 249 N.E.2d 386 ; see Desiderio v. Geico Gen. Ins. Co., 107 A.D.3d 662, 663, 967 N.Y.S.2d 392 ). Where the release is unambiguous, a court may not look to extrinsic evidence to determine the...