Cleveland v. Perry

• Decision Date: 22 August 2019
• Docket Number: 617,CA 18–01137
• Citation: 175 A.D.3d 1017,108 N.Y.S.3d 602
• Parties: Tammy A. CLEVELAND, Individually, and as Administratrix of the Estate of Michael E. Cleveland, Deceased, Plaintiff–Appellant, v. Gregory C. PERRY, M.D., FDR Medical Services, P.C., Kaleida Health and Kaleida Health/Degraff Memorial Hospital, Defendants–Respondents. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 1017
108 N.Y.S.3d 602

Tammy A. CLEVELAND, Individually, and as Administratrix of the Estate of Michael E. Cleveland, Deceased, Plaintiff–Appellant,
v.
Gregory C. PERRY, M.D., FDR Medical Services, P.C., Kaleida Health and Kaleida Health/Degraff Memorial Hospital, Defendants–Respondents. (Appeal No. 1.)

617
CA 18–01137

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

Entered: August 22, 2019

BURKWIT LAW FIRM, PLLC, ROCHESTER (CHARLES F. BURKWIT OF COUNSEL), FOR PLAINTIFF–APPELLANT.

SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR DEFENDANTS–RESPONDENTS GREGORY C. PERRY, M.D., AND FDR MEDICAL

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (MICHAEL J. WILLETT OF COUNSEL), FOR DEFENDANTS–RESPONDENTS KALEIDA HEALTH AND KALEIDA

PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

175 A.D.3d 1018

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motions are denied.

Memorandum: Plaintiff Tammy A. Cleveland, individually and as administratrix of the estate of Michael E. Cleveland, deceased, commenced this action against defendants Gregory C. Perry, M.D. and FDR Medical Services, P.C. (FDR) (collectively, FDR defendants) and Kaleida Health and Kaleida Health/DeGraff Memorial Hospital (DeGraff) (collectively, Kaleida defendants), seeking damages for, inter alia, medical malpractice and intentional and negligent infliction of emotional distress arising from decedent's death. Decedent, who was plaintiff's husband, suffered cardiac arrest while grocery shopping with his son. Upon being transported to DeGraff, decedent was taken to a code room and intubated. CPR, which had been performed by paramedics prior to decedent's arrival at DeGraff, was continued and Perry, an FDR employee and emergency physician at DeGraff, detected a faint pulse, which lasted only briefly. Treatment continued until Perry pronounced decedent dead at 8:29 p.m. Thereafter, Perry notified plaintiff that decedent had died, and plaintiff, along with decedent's son and several other family members, was brought into the code room. Plaintiff alleges that, for the next two hours and 40 minutes, decedent was breathing, making eye contact, and moving around, which prompted her and the coroner to urge Perry and the nursing staff to examine decedent, but they refused to do so. When Perry examined decedent at 11:10 p.m. at plaintiff's insistence, he observed that decedent was, in fact, alive. Decedent was transferred to another hospital, where he underwent heart surgery and subsequently died.

In appeal No. 1, plaintiff appeals from an order that granted the motions of defendants seeking to enjoin and prohibit all

108 N.Y.S.3d 605

parties and their attorneys from making extrajudicial statements about the action or the underlying facts in a public forum or in front of the media. In appeal No. 2, plaintiff appeals and defendants cross-appeal from an order that granted in part defendants' motions for summary judgment dismissing

175 A.D.3d 1019

the complaint and dismissed the fifth and seventh causes of action, for intentional infliction of emotional distress (IIED), and dismissed plaintiff's claims for punitive damages. The order in appeal No. 2 denied defendants' motions insofar as they sought summary judgment dismissing, inter alia, the first through fourth causes of action, for medical malpractice, and the sixth and eighth causes of action, for negligent infliction of emotional distress (NIED).

In appeal No. 1, we agree with plaintiff that Supreme Court erred in granting defendants' motions for an order enjoining and prohibiting the parties and their attorneys from making extrajudicial statements about the action or the underlying facts in a public forum or in front of the media. Although defendants met their burden of "demonstrat[ing] that such statements present a ‘reasonable likelihood’ of a serious threat to [defendants'] right to a fair trial" ( Matter of National Broadcasting Co. v. Cooperman, 116 A.D.2d 287, 292, 501 N.Y.S.2d 405 [2d Dept. 1986] ; see also Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600 [1966] ), there is no evidence in the record "that less restrictive alternatives would not be just as effective in assuring the defendant[s] a fair trial" ( National Broadcasting Co., 116 A.D.2d at 293, 501 N.Y.S.2d 405, citing Nebraska Press Assn. v. Stuart, 427 U.S. 539, 562, 96 S.Ct. 2791, 49 L.Ed.2d 683 [1976]...