Byers v. Winthrop Univ. Hosp.

• Decision Date: 29 June 2011
• Docket Number: Index No.: 17533/07,Motion Seq. No.: 03
• Parties: LISA-ANNE BYERS, Plaintiff, v. WINTHROP UNIVERSITY HOSPITAL, NASSAU SURGICAL ASSOCIATES P.C. and FRANK A. MONTELEONE, M.D., Defendants.
• Court: New York Supreme Court

2011 NY Slip Op 31823

LISA-ANNE BYERS, Plaintiff, v. WINTHROP UNIVERSITY HOSPITAL NASSAU SURGICAL ASSOCIATES P.C. and FRANK A. MONTELEONE, M.D., Defendants.

Index No.: 17533/07

Motion Seq. No.: 03

SUPREME COURT OF THE STATE OF NEW YORK TRIAL/IAS PART 32 NASSAU COUNTY

Dated: June 29, 2011.

SHORT FORM ORDER

PRESENT: HON. DENISE L. SHER

Acting Supreme Court Justice

Motion Date: 03/17/11

XXX

The following papers have been read on this motion:

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                ¦Notice of Motion. Affirmation. Affidavits and Exhibits¦1              ¦
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                ¦Affirmation in Opposition and Exhibits                ¦2              ¦
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                ¦Affirmation in Opposition and Exhibits                ¦3              ¦
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                ¦Reply Affirmation and Exhibits                        ¦4              ¦
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                ¦Sur-Reply Affirmation and Exhibits                    ¦5              ¦
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                ¦Sur-Reply Affirmation                                 ¦6              ¦
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Upon the foregoing papers, it is ordered that the motion is decided as follows:

Plaintiff moves, pursuant to CPLR §§ 3216 and 2005, for an order restoring plaintiff's case to the court's calendar; and moves, pursuant to CPLR § 2004, for an order extending the time for plaintiff to serve and file her Note of Issue and Certificate of Readiness nunc pro tunc. Defendants oppose the motion.

The above captioned matter was an action for medical malpractice which wascommenced by the filing of a Summons and Verified Complaint on or about October 1, 2007. Defendant Winthrop University Hospital ("Winthrop") joined issue on or about October 20, 2007. Defendants Nassau Surgical Associates ("Nassau Surgical") and Frank A. Monteleone, M.D. ("Monteleone") joined issue on or about November 1,2007.

On August 3, 2009, the law firm of H. Fitzmore Harris, P.C. filed a Consent to Change Attorney Form replacing Stafford Byers as plaintiff's counsel in the instant matter. On February 16,2010, a Certification Conference was held in the matter. At said Certification Conference, plaintiff's attorney was represented by per diem counsel. The Court issued a Certification Order which directed plaintiff to file her Note of Issue and Certificate of Readiness within ninety (90) days. Said Order also informed plaintiff that if the Note of Issue was not filed within ninety (90) days the action would be dismissed. The ninety (90) days to file the Note of Issue and Certificate of Readiness expired on May 16, 2010. Plaintiff failed to file the Note of Issue and Certificate of Readiness by this date and, on May 18, 2010, the Clerk of the Court entered an Order dismissing plaintiff's action. On June 29, 2010, judgment was entered dismissing plaintiff's action. See Plaintiff's Affirmation in Support Exhibit H.

Plaintiff now moves to vacate her default and extend the time to file her Note of Issue. Plaintiff argues that the Court should enter an order vacating the judgment of dismissal for the following reasons: (1) plaintiff has a meritorious cause of action; (2) plaintiff has demonstrated a reasonable excuse for the failure to file her Note of Issue and Certificate of Readiness; (3) there is no prejudice to the defendants in extending the time; and (4) the failure to file the Note of Issue was not deliberate.

With respect to plaintiffs argument that there was a reasonable excuse for the default,plaintiff's counsel submits that, at the end of February 2010, his then legal assistant, Caroline Ennis, suddenly resigned and discontinued her employment with counsel's office. Plaintiff's counsel states, "The sudden resignation of Caroline Ennis left my office in a precarious position of having to find her replacement as well as hiring and training the new employee in the operations of the office and familiarity with the numerous cases. Between March 1st and April 30th, 2010, we tried three different employees who did not work out and it was not until the end of April 2010, our office was able to hire a replacement for Caroline Ennis. Meanwhile, I later discovered that around March 3rd, 2010, the Per Diem attorney had mailed the Certification Order to our office. This was done at a time when our office was trying to find a replacement for Ms. Ennis. Under the circumstances, the mail was not properly filed and as a result, I was not aware that I had to file the note of issue and certificate of readiness by May 16,2010."

In further support of plaintiff's argument that there was a reasonable excuse for the default, plaintiff's counsel adds, "[i]n addition to the support problems in the office, during the early part of May, 2010, my sister Pauline Harris was involved in a serious accident in Antigua, West Indies and suffered severe third Degree burns to both of her lower extremities. As a result, I had to travel to Antigua around the middle of May, to around the middle of June, 2010 in order to assist my sister. Thus, I was not present in New York around May 16, 2010, when the note of issue had to be filed and my office failed to file the note of issue as directed by the court."

In support of the argument that plaintiff has a meritorious cause of action, plaintiff offers the affidavit of Dr. Lawrence Roach, a board certified radiologist. See Plaintiff's Affirmation in Support Exhibit E. Dr. Roach reviewed plaintiff's relevant medical records from defendants Nassau Surgical, Monteleone and Winthrop, as well as plaintiff's medical records from Dr.Lydia Valderama.

In opposition to the motion, defendant Winthrop argues that plaintiff has failed to establish a basis to vacate the Note of Issue and restore this matter to the trial calendar. Defendant Winthrop contends that plaintiff has failed to submit an Affidavit of Merit sufficient to establish a good and meritorious cause of action against defendant Winthrop and has failed to demonstrate a justifiable excuse for the default. With respect to the affidavit of Dr. Roach submitted by plaintiff to establish a good and meritorious cause of action against defendants, defendant Winthrop states that "[a] review of plaintiff's expert Affidavit, reveals that it fails to establish any departures on the part of Winthrop University Hospital with respect to the care and treatment provided to plaintiff. Plaintiff's expert Affidavit is devoid of any allegations of negligence or departures on the part of Winthrop University Hospital with respect to the care and treatment provided to the plaintiffs (sic). In fact, apart from acknowledging the review of the medical records of Winthrop University Hospital and the statement that the surgery at issue took place at Winthrop University Hospital, plaintiff's expert fails to make even a single reference to Winthrop University Hospital in his Affidavit. Plaintiff's expert Affidavit fails to allege any negligence on the part of Winthrop University Hospital, fails to allege any departure on the part of Winthrop University Hospital, fails to establish a standard of care applicable to Winthrop University Hospital, and finally, fails to establish that there were any departures from the accepted standard of care by the Hospital which proximately caused any of the injuries claimed in this case. In short, plaintiff's expert Affidavit fails entirely to establish a meritorious cause of action as to Winthrop University Hospital."

With respect to plaintiff's contention that there is a justifiable excuse for the default, defendant Winthrop argues that" [i]n the case at bar, counsel has alleged that the default wasessentially due to the sudden resignation of one employee, described as a legal assistant, and the resulting failure to properly file mail containing the Certification Order. In this regard, counsel did not allege that he was a solo practitioner, did not allege what the duties and responsibilities of this legal assistant entailed, and did not allege that this legal assistant was the only employee with familiarity with counsel's cases and the operation of counsel's office at the time. Counsel does not address at all his own responsibility for the supervision of his office staff or his own obligation to be vigilant and diligent with respect to time constraints imposed by court orders, particularly under the circumstances counsel asserts were existing in his office at the time in question during March and April, 2010. Counsel asserts that two months elapsed between March 1 and April 30, 2010, during which time the Certification Order was mailed to his office by per diem counsel who appeared for the Certification Conference and the. Certification Order was apparently not properly filed because of support staff difficulties. For this reason, counsel claims that he was not aware that the Note of Issue was due by May 16, 2010. This amounts to conclusory and unsubstantiated claims of law office failure that does not rise to the level of a reasonable excuse."

Defendant Winthrop further argues that "[i]t is respectfully submitted in this day and age, with the availability of information and communication by email, fax and phone, there has been no justifiable excuse offered by counsel to reasonably explain the failure to take the steps necessary to insure that the Note of Issue was filed in compliance with the provisions of the Certification Order notwithstanding the fact that counsel was physically out of the country at the time."

Defendants Nassau Surgical and Monteleone also submitted...