Howard v. Stanger

• Decision Date: 20 November 2014
• Docket Number: 518191
• Citation: 122 A.D.3d 1121,2014 N.Y. Slip Op. 08088,996 N.Y.S.2d 785
• Parties: Gail C. HOWARD, Individually and as Administrator of the Estate of Scott R. Howard, Deceased, Appellant, v. Craig STANGER et al., Respondents.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 1121
996 N.Y.S.2d 785
2014 N.Y. Slip Op. 08088

Gail C. HOWARD, Individually and as Administrator of the Estate of Scott R. Howard, Deceased, Appellant
v.
Craig STANGER et al., Respondents.

518191

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

Nov. 20, 2014.

996 N.Y.S.2d 786

Freeman Howard, P.C., Hudson (Paul M. Freeman of counsel), for appellant.

Feldman Kieffer, LLP, Buffalo (James E. Eagan of counsel), for Craig Stanger and another, respondents.

O'Connor, O'Connor, Bresee & First, P.C., Albany (Justin O'C. Corcoran of counsel), for Columbia Memorial Hospital, respondent.

Before: PETERS, P.J., STEIN, ROSE, EGAN JR. and CLARK, JJ.

Opinion

EGAN JR., J.

122 A.D.3d 1122

Appeals (1) from an order of the Supreme Court (McGrath, J.), entered March 27, 2013 in Columbia County, which granted defendants' motions for summary judgment dismissing the complaint, and (2) from an order of said court (Zwack, J.), entered July 23, 2013 in Columbia County, which denied plaintiff's motion for reconsideration.

On January 29, 2009, Scott R. Howard (hereinafter decedent) became ill while testifying at the Columbia County Courthouse. Decedent advised responding emergency services personnel that he was suffering from, among other things, back pain and numbness in his legs and thereafter was transported via ambulance to defendant Columbia Memorial Hospital. Upon his arrival in the hospital's emergency department, decedent relayed his symptoms to the nursing staff, indicating, among other things, that he had experienced dizziness and a “sudden onset of back discomfort” and that he “felt tingling in his legs.” While in the emergency department, decedent displayed various gastrointestinal symptoms, including nausea and vomiting, in response to which defendant Craig Stanger, one of the attending

996 N.Y.S.2d 787

physicians on duty that day, ordered medication to treat decedent's nausea and blood tests to evaluate his condition. After speaking with decedent and reviewing his laboratory results, Stanger discharged decedent with a diagnosis of gastroenteritis, acute stress reaction and renal insufficiency and directed him to follow up with his personal physician. The following day, decedent returned to the hospital's emergency department in cardiac arrest and, shortly thereafter, died—purportedly as the result of a cardiac tamponade due to a ruptured dissecting thoracic aortic aneurysm.

Plaintiff subsequently commenced this medical malpractice and wrongful death action against the hospital, Stanger and Stanger's employer, defendant Columbia Emergency Services, P.C. Following joinder of issue and discovery, defendants separately moved for summary judgment dismissing plaintiff's complaint. Supreme Court (McGrath, J.) granted defendants' motions, prompting plaintiff to move for reconsideration. Supreme Court (Zwack, J.) denied plaintiff's motion for reconsideration, and these appeals by plaintiff ensued.

Beginning with plaintiff's motion for reconsideration, to the extent that such motion sought reargument, no appeal lies from the denial thereof (see Wells Fargo, N.A. v. Levin, 101 A.D.3d 1519, 1520, 958 N.Y.S.2d 227 [2012], lv. dismissed 21 N.Y.3d 887, 965 N.Y.S.2d 780, 988 N.E.2d 516 [2013] ). To the

122 A.D.3d 1123

extent that plaintiff sought leave to renew, it is well settled that “a motion to renew must be based upon newly discovered evidence which existed at the time the prior motion was made, but was unknown to the party seeking renewal, along with a justifiable excuse as to why the new information was not previously submitted” (Matter of Kelly v. Director of TRC Programs, 84 A.D.3d 1657, 1658, 923 N.Y.S.2d 914 [2011] [internal quotation marks and citation omitted]; see Premo v. Rosa, 93 A.D.3d 919, 920, 940 N.Y.S.2d 199 [2012] ). Notably, a motion to renew is “not a second chance to remedy inadequacies that occurred in failing to exercise due diligence in the first instance” (Onewest Bank, FSB v. Slowek, 115 A.D.3d 1083, 1083, 982 N.Y.S.2d 193 [2014] [internal quotation marks and citation omitted] ).

Here, plaintiff's motion to renew was based upon her discovery that Stanger's license to practice medicine was under a one-year stayed suspension¹ at the time that he tendered his affidavit in support of defendants' respective motions.² As Stanger's license was under suspension, the argument continues, his affidavit necessarily was insufficient to discharge defendants' initial burden on the motions for summary judgment. Setting aside, for the moment, the overall sufficiency of Stanger's affidavit, the flaw in plaintiff's argument on this point—viewed in the context of the motion to renew—is that Stanger's license suspension was effective June 7, 2012, the underlying consent order entered into between Stanger and the Office of Professional Medical Conduct was a public document and plaintiff has failed to offer any explanation as to why such suspension could not have been discovered with due

996 N.Y.S.2d 788

diligence prior to the point in time that plaintiff opposed defendants' motions in November 2012. Under these circumstances, plaintiff's motion to renew was properly denied (see Vieyra v. Penn Toyota, Ltd., 116 A.D.3d 840, 841–842, 983 N.Y.S.2d 437 [2014] ; Webber v. Scarano–Osika, 94 A.D.3d 1304, 1305–1306, 943 N.Y.S.2d 240 [2012] ; Hoffman v. Pelletier, 6 A.D.3d 889, 890, 775 N.Y.S.2d 397 [2004] ).

Turning to the merits, “[t]he essential elements of medical...