Cadichon v. Facelle

• Decision Date: 18 March 2010
• Citation: 897 N.Y.S.2d 67,71 A.D.3d 520
• Parties: Juliette DeJoie CADICHON, et al., Plaintiffs-Appellants, v. Thomas FACELLE, M.D., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 67

71 A.D.3d 520

Juliette DeJoie CADICHON, et al., Plaintiffs-Appellants,

v.Thomas FACELLE, M.D., et al., Defendants-Respondents.

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

March 18, 2010.

Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellants.

Martin Clearwater & Bell LLP, New York (Stewart G. Milch of counsel), for Thomas Facelle, M.D., respondent.

Steinberg, Symer & Platt, LLP, Poughkeepsie (Ellen Fischer Bopp of counsel), for Good Samaritan Hospital, respondent.

McAloon & Friedman, P.C., New York (Timothy J. O'Shaughnessy of counsel), for Montefiore Medical Center, respondent.

Clausen Miller P.C., New York (Edward Tobin of counsel), for Louis May, M.D., respondent.

GONZALEZ, P.J., SAXE, McGUIRE, MANZANET-DANIELS, ROMÁN, JJ.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered August 26, 2008, which denied plaintiffs' motion to vacate the dismissal of the action pursuant to CPLR 3216, affirmed, without costs. Order, same court and Justice, entered January 29, 2009, to the extent it denied plaintiffs' motion to renew, affirmed, without costs. Appeal from so much of the January 29, 2009 order as denied plaintiffs' motion to reargue, unanimously dismissed, without costs, as taken from a nonappealable order.

It is well settled that to vacate the dismissal of an action dismissed pursuant to CPLR 3216, a plaintiff must demonstrate both a reasonable excuse for the failure to comply with the 90-day demand to serve and file a note of issue and a meritorious cause of action ( Walker v. City of New York, 46 A.D.3d 278, 847 N.Y.S.2d 173 [2007] ). Plaintiffs failed to offer a reasonable excuse for their failure to file the note of issue. Indeed, while plaintiffs contended that defendants' noncompliance with their discovery obligations was to blame, and that such noncompliance was preventing them from filing a note of issue, "[they] had [their] remedies during the lengthy period of general delay (CPLR 3124, 3126)" ( McDonald v. Montefiore Med. Ctr., 60 A.D.3d 547, 547, 876 N.Y.S.2d 16 [2009] ).

While we do not disagree with the dissent's conclusion that some of the delay was occasioned by defendant, our decision rests on the record and controlling law which required plaintiffs to take action. Once served with a 90-day demand, plaintiffs were required to either seek an extension to comply with the 90-day notice, move to vacate the same ( Brady v. Benenson Capital Co., 2 A.D.3d 382, 382, 767 N.Y.S.2d 787 [2003], lv. denied 2 N.Y.3d 702, 778 N.Y.S.2d 460, 810 N.E.2d 913 [2004] ) or file a note of issue (CPLR 3216[b] [3] ). Plaintiffs did none of these things and their case was thus properly dismissed. Subsequent to dismissal, vacatur required a quantum of proof which plaintiffs utterly failed to satisfy with their first motion, and which they were unable to cure with the their second motion.

Plaintiffs also impermissibly addressed the merits of their action for the first time on reply ( Migdol v. City of New York, 291 A.D.2d 201, 201, 737 N.Y.S.2d 78 [2002]; Lumbermens Mut. Cas. Co. v. Morse Shoe Company, 218 A.D.2d 624, 625-626, 630 N.Y.S.2d 1003 [1995]; Ritt v. Lenox Hill Hosp., 182 A.D.2d 560, 562, 582 N.Y.S.2d 712 [1992] ).

The excuse of law office failure offered on the motion to reargue and renew did not constitute a reasonable excuse ( Walker, 46 A.D.3d at 280-281, 847 N.Y.S.2d 173). Further, plaintiffs failed to explain why they failed to present the excuse of law office failure on the original motion.

We have considered plaintiffs' remaining contentions and find them unavailing.

All concur except SAXE and MANZANET-DANIELS, JJ. who dissent in a memorandumby MANZANET-DANIELS, J. as follows:

MANZANET-DANIELS, J. (dissenting).

I respectfully dissent. Plaintiffs demonstrated a reasonable excuse for their failure to comply with the court-issued 90-day demand, as well as a meritorious cause of action.

The record shows that the discovery delays in this consolidated action were occasioned principally by defendants. At the time the court sua sponte dismissed the action for failure to prosecute, the depositions of Dr. May and Dr. Facelle had yet to take place, and defendants had yet to designate a physician to perform an independent medical examination (IME) of the injured plaintiff, as they had been ordered to do on May 3, 2007. The so-ordered stipulation entered that day provided that the physician defendants were to appear for EBTs on or before June 26 and July 10, 2007, respectively, and that the hospital defendants were to designate representatives to appear for EBTs on or before August 21, 2007. Defendants were ordered to designate a physician to perform the IME and to conduct the IME by July 16, 2007. The so-ordered stipulations stated that there were to be no further adjournments of the IME and that defendant Dr. May was to appear by July 10, 2007, without adjournment. Plaintiff was directed to file the note of issue on or before December 27, 2007. Defendants provided none of the court-ordered discovery, despite warnings that there would be no further adjournments. A defendant who fails to comply with a plaintiff's legitimate discovery demands, and thus prevents the filing of the note of issue, cannot seek dismissal of a plaintiff's complaint for failure to file a note of issue in response to a "90-day demand" ( see Donegan v. St. Joseph's Med. Ctr., 283 A.D.2d 152, 724 N.Y.S.2d 582 [2001] ).

Since the discovery delays herein were caused by defendants, the case should not have been dismissed, even in the absence of a medical affidavit demonstrating the merit of the action ( see Donegan, 283 A.D.2d at 153, 724 N.Y.S.2d 582). In any event, the merit of the action was demonstrated, inter alia, through the affirmation of plaintiffs' physician, board-certified in internal medicine and gastroenterology, who opined that plaintiff, during procedures performed in July 2002, suffered biliary injuries caused by deviations from standards of good and accepted medical practice by Dr. May and Dr. Facelle. Plaintiff's expert stated that Dr. May created a "surgical emergency" during a routine procedure by passing a wire and catheter through the distal common bile duct, rather than performing a sphincterotomy to extract a stone in the duct, as he had been...