Burro v. Kang

• Decision Date: 12 December 2018
• Docket Number: Index No. 26694/01,2017–03274
• Citation: 167 A.D.3d 694,90 N.Y.S.3d 298
• Parties: Jeanette BURRO, etc., Respondent, v. Pritpal KANG, Defendant, Dyker Emergency Physicians, P.C., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 694

90 N.Y.S.3d 298

Jeanette BURRO, etc., Respondent,

v. Pritpal KANG, Defendant,Dyker Emergency Physicians, P.C., et al., Appellants.

2017–03274

Index No. 26694/01

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

Submitted - June 8, 2018

December 12, 2018

Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Elliott J. Zucker of counsel), for appellants.

Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Jillian Rosen ], of counsel), for respondent.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice and wrongful death, etc., the defendants Dyker Emergency Physicians, P.C., and Ajoy Kumar Pandey appeal from an order of the Supreme Court, Kings County (Gloria M. Dabiri, J.), entered March 10, 2017. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for leave to renew her prior motion, inter alia, to restore the action to active status, which had been denied, without prejudice, in a prior order of the same court dated May 10, 2016, and for leave to renew her opposition to the separate cross motions of the defendant Pritpal Kang and the defendants Dyker Emergency Physicians, P.C., and Ajoy Kumar Pandey to dismiss the amended complaint insofar as asserted against each of them, which had been granted in the order dated May 10, 2016, and upon renewal, in effect, vacated the order dated May 10, 2016, and thereupon granted that branch of the plaintiff's prior motion which was to restore the action to active status and, in effect, denied the separate cross motions of the defendant Pritpal Kang and the defendants Dyker Emergency Physicians, P.C., and Ajoy Kumar Pandey to dismiss the amended complaint insofar as asserted against each of them.

ORDERED that the appeal from so much of the order entered March 10, 2017, as granted that branch of the plaintiff's motion which was for leave to renew her opposition to the cross motion of the defendant Pritpal Kang to dismiss the amended complaint insofar as asserted against him and, upon renewal, in effect, vacated the determination in the order dated May 10, 2016, granting that cross motion, and thereupon, in effect, denied that cross motion is dismissed, without costs or disbursements, as the defendants Dyker Emergency Physicians, P.C., and Ajoy Kumar Pandey are not aggrieved by those portions of the order entered March 10, 2017 (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132 ); and it is further,

ORDERED that the order entered March 10, 2017, is modified, on the facts and in the exercise of discretion, by deleting the provision thereof, upon renewal, in effect, denying the cross motion of the defendants Dyker Emergency Physicians, P.C., and Ajoy Kumar Pandey to dismiss the amended complaint insofar as asserted against them, and substituting therefor a provision, upon renewal, granting that cross motion only to the extent of imposing a monetary sanction in the sum of $2,500 payable to the defendant Dyker Emergency Physicians, P.C., by the plaintiff's attorney, and imposing a monetary sanction in the sum of $2,500 payable to the defendant Ajoy Kumar Pandey by the plaintiff's attorney, and otherwise denying that cross motion; as so modified, the order entered March 10, 2017, is affirmed insofar as reviewed, without costs or disbursements.

In 2001, this action was commenced against, among others, the defendants Pritpal Kang, Dyker Emergency Physicians, P.C. (hereinafter Dyker), and Ajoy Kumar Pandey (hereinafter together with Dyker, the appellants) by Antonio P. Ferrante, the husband of Jean Ferrante (hereinafter the decedent), suing on behalf of the decedent's estate and on his own behalf, to recover damages, inter alia, for medical malpractice and wrongful death with respect to the decedent's death after she sought and received medical treatment from the defendants. After Antonio died in 2011, Jeannette Burro, as administrator of both the decedent's estate and Antonio's estate, was substituted as the plaintiff.

Following motion practice, the Supreme Court issued an order dated March 23, 2015 (hereinafter the conditional order of dismissal), in which the court directed that the amended complaint would be dismissed unless certain discovery deadlines were met and the plaintiff filed a note of issue, or moved to extend her time to do so, by September 11, 2015. The plaintiff failed to file a note of issue by September 11, 2015, as certain discovery remained outstanding, and she did not move to extend her time to file the note of issue. This matter was marked disposed by the court.

Subsequently, the plaintiff moved, inter alia, to restore the action to active status, and Kang and the appellants separately cross-moved to dismiss the amended complaint insofar as asserted against each of them. In an order dated May 10, 2016, the Supreme Court denied the plaintiff's motion "without prejudice" and granted the separate cross motions of Kang and the appellants.

Thereafter, the plaintiff moved, inter alia, for leave to renew her prior motion, among other things, to restore the action to active status, and for leave to renew her opposition to the separate cross motions of Kang and the appellants to dismiss the amended complaint insofar as asserted against each of them. In an order entered March 10, 2017, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for leave to renew, and upon renewal, in effect, vacated the order dated May 10, 2016, and thereupon granted that branch of the plaintiff's prior motion which was to restore the action to active status and, in effect, denied the separate cross motions of Kang and the appellants to dismiss the amended complaint insofar as asserted against each of them.

As an initial matter, we observe that Kang has not appealed from the order entered March 10, 2017. "Relief on an appeal may not, as a general rule, be granted to a nonappealing party" ( Stimmel v. Stimmel, 163 A.D.2d 381, 383, 558 N.Y.S.2d 112 ; see 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 151 n. 3, 746 N.Y.S.2d 131, 773 N.E.2d 496 ; Hecht v. City of New York, 60 N.Y.2d 57, 61–62, 467 N.Y.S.2d 187, 454 N.E.2d 527 ; Viafax Corp. v. Citicorp Leasing, Inc., 54 A.D.3d 846, 850, 864 N.Y.S.2d 479 ). The corollary to this rule is that "an appellate court's scope of review with respect to an appellant, once an appeal has been timely taken, is generally limited to those parts of the judgment [or order] that have been appealed and that aggrieve the appealing party" ( Hecht v. City of New York, 60 N.Y.2d at 61, 467 N.Y.S.2d 187, 454 N.E.2d 527 ). As relevant here, "a person is aggrieved when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part" ( Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132 [emphasis omitted] ). Accordingly, the appeal from so much of the order entered March 10, 2017, as granted the plaintiff relief against Kang must be dismissed, as the appellants are not aggrieved by those portions of that order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d at 156–157, 904 N.Y.S.2d 132 ).

Turning to the merits, a motion for leave to renew must be based upon new facts, not offered on the original motion, "that would change the prior determination" ( CPLR 2221[e][2] ; see Deutsche Bank Trust Co. v. Ghaness, 100 A.D.3d 585, 585–586, 953 N.Y.S.2d 301 ). "The new or additional facts either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion" ( Deutsche Bank Trust Co. v. Ghaness, 100 A.D.3d at 586, 953 N.Y.S.2d 301 ; see Cioffi v. S.M. Foods, Inc., 129 A.D.3d 888, 891, 10 N.Y.S.3d 620 ). "However, in either instance, a ‘reasonable justification’ for the failure to present such facts on the original motion must be presented" ( Rowe v. NYCPD, 85 A.D.3d 1001, 1003, 926 N.Y.S.2d 121, quoting CPLR 2221[e][3] ; see Cioffi v. S.M. Foods, Inc., 129 A.D.3d at 891, 10 N.Y.S.3d 620 ; Deutsche Bank Trust Co. v. Ghaness, 100 A.D.3d at 586, 953 N.Y.S.2d 301 ). "The Supreme Court has discretion in determining what constitutes a reasonable justification for a party's failure to present certain facts initially" ( Martelloni v. Martelloni, 154 A.D.3d 924, 926, 62 N.Y.S.3d 502 ; see Buongiovanni v. Hasin, 162 A.D.3d 736, 738, 79 N.Y.S.3d 251 ).

Here, contrary to the appellants' contention, the Supreme Court providently exercised its discretion in considering the new evidence submitted by the plaintiff in support of those branches of her motion which were for leave to renew her prior motion and her opposition to the appellants' cross motion. Although the new facts may have been known to the plaintiff at the time of her prior motion, the plaintiff explained that the new evidence was not submitted in connection with her prior motion and opposition due to a misunderstanding by counsel that ultimately led to law office failure. It was not, under the circumstances of this case, an improvident exercise of discretion for the court to accept, as a reasonable justification, the plaintiff's explanation (see Buongiovanni v. Hasin, 162 A.D.3d at 738, 79 N.Y.S.3d 251 ; Martelloni v. Martelloni, 154 A.D.3d at 926, 62 N.Y.S.3d 502 ; Calle v. Zimmerman, 133 A.D.3d 809,...