McCarthy v. Brian R. Kerrigan, M.D., Town of Massena N.Y. (Massena Mem'l Hospital), Jan Close, M.D., Canton-Potsdam Hosp., & St. Lawrence Health Alliance, Inc.

• Decision Date: 27 March 2018
• Docket Number: 146307
• Citation: 59 Misc.3d 872,74 N.Y.S.3d 694
• Parties: Jessica MCCARTHY, as Administrator of the Estate of Jay F. McCarthy, Plaintiff, v. Brian R. KERRIGAN, M.D., Town of Massena New York (Massena Memorial Hospital), Jan Close, M.D., Canton–Potsdam Hospital, and St. Lawrence Health Alliance, Inc., Defendant, Brian R. Kerrigan, M.D., Third–Party Plaintiff, Nathan Wittkop, D.C., Third–Party Defendant.
• Court: New York Supreme Court

59 Misc.3d 872

74 N.Y.S.3d 694

Jessica MCCARTHY, as Administrator of the Estate of Jay F. McCarthy, Plaintiff,

v.Brian R. KERRIGAN, M.D., Town of Massena New York (Massena Memorial Hospital), Jan Close, M.D., Canton–Potsdam Hospital, and St. Lawrence Health Alliance, Inc., Defendant,Brian R. Kerrigan, M.D., Third–Party Plaintiff,Nathan Wittkop, D.C., Third–Party Defendant.

146307

Supreme Court, New York.

Decided March 27, 2018

Law Office of Mark H. Cantor, LLC (David J. Wolff, Jr., Esq., of counsel), attorneys for Plaintiff;

Phelan, Phelan, & Denak, LLP (Timothy S. Brennan, Esq., of counsel), attorneys for Defendant and Third–Party Plaintiff Brian R. Kerrigan, M.D.;

Thuillez, Ford, Gold, Butler, & Monroe, LLP (Kelly M. Monroe, Esq., of counsel), attorneys for Defendant Town of Massena;

Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C. (Stanley J. Tartaglia, Jr., Esq., of counsel), attorneys for Defendants Canton–Potsdam Hospital and St. Lawrence Health Alliance;

Maynard, O'Connor, Smith & Catalinotto, LLP (Bridget M. Schultz, Esq., of counsel), attorneys for Defendant Jan Close, M.D.;

Marks, O'Neill, O'Brien, Doherty, Kelly, P.C. (Robert E. Fein, Esq., of counsel), attorneys for Third–Party Defendant.

Mary M. Farley, J.Two motions are before the Court in this medical malpractice action. First, Third–Party Defendant Nathan Witkop, D.C. ("Witkop")¹ moves for summary judgment, arguing the third-party action brought against him by Defendant/Third–Party Plaintiff Brian R. Kerrigan, M.D. ("Kerrigan") is barred by N.Y. General Obligations Law § 15–108. To this end, Witkop asserts Plaintiff's stipulation of discontinuance "with prejudice" of his claims against Witkop, as ordered pursuant to New York C.P.L.R. § 3217(b) by the Court on June 27, 2016, comprises a "release" under General Obligations Law § 15–108, thereby barring Kerrigan's third-party claim. Defendant Jan Close, M.D. ("Close") cross-moves seeking to stay the trial in this action pending conclusion of an arbitration agreed to by Plaintiff and Witkop, and which formed the basis of Plaintiff's stipulation of discontinuance as against Witkop. For the reasons which follow, the Court: (1) denies Witkop's motion for summary judgment, without prejudice to renewal pending conclusion or settlement of the arbitration and Plaintiff's claims against Witkop; and, (2) grants Close's cross-motion for stay of trial.

STATEMENT OF FACTS

Jay F. McCarthy ("Jay") commenced this medical malpractice action August 17, 2015, alleging numerous defendants, including Kerrigan, Close and Witkop, committed medical malpractice by negligently failing to recognize and treat symptoms of a stroke during the course of Jay's treatment from April 7, 2015, through April 22, 2015. See Affirmation of Robert E. Fein, Esq., dated November 7, 2017 ("Fein aff."), at ¶ 5 & Ex. A (Complaint dated August 12, 2015); Affirmation of David J. Wolff, Jr., Esq. ("Wolff"), dated December 29, 2017 ("Wolff aff."), at ¶¶ 5–9 & Ex. E (Plaintiff's Bill of Particulars); Affirmation of Timothy S. Brennan, Esq., in Opposition to Summary Judgment dated December 6, 2017 ("Brennan Opposition aff."), at ¶ 3. No Defendant has asserted cross-claims. See Fein aff. at ¶¶ 7–8, 20–23 & Exs. B–D, F, N–Q (Answers).

Jay died September 28, 2016, and Letters of Administration were issued to Jay's daughter, Jessica McCarthy ("Jessica"), on February 22, 2017. See Fein aff. at ¶¶ 15–16 & Ex. J. By Order dated July 7, 2017, Jessica, as Administrator of the Estate of Jay McCarthy, was substituted as Plaintiff. The parties have stipulated a wrongful death cause of action be added through Amended Complaint. See Fein aff. at ¶ 18 & Ex. L (Supplemental Summons and Amended Complaint).

After commencing this action, but before his death, Jay entered into an Arbitration Agreement dated January 29, 2016 ("Arbitration Agreement") with Witkop.² Affirmation of Bridget M. Schultz, Esq., dated December 5, 2017 ("Schultz aff."), at ¶ 5 & Ex. A (Arbitration Agreement); Fein aff. at ¶ 9 & Ex. E (same); see Brennan Opposition aff. at ¶ 4. In pertinent part, the Arbitration Agreement states:

Article 1: Agreement to Arbitrate: It is understood that any dispute as to medical malpractice , that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently, or incompletely rendered, will be determined by submission to arbitration as provided by state and federal law, and not by a lawsuit or resort to court process, except as state and federal law provides for judicial review of arbitration proceedings. Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration... An arbitration can only decide a dispute between the parties [ ].

Article 3: Procedures and Applicable Law: A demand for arbitration must be communicated in writing to all parties. Each party shall select an arbitrator (party arbitrator) within thirty days, and a third arbitrator (neutral arbitrator) shall be selected by the arbitrators appointed by the parties within thirty days thereafter. The neutral arbitrator shall then be the sole arbitrator and shall decide the arbitration...

Arbitration Agreement at Arts. 1 & 3 (boldface in original; emphases added).

Plaintiff and Witkop do not dispute the Arbitration Agreement was valid when made, and remains so, despite the substitution of Jessica as Plaintiff. "[T]he action against Witkop has to proceed through Arbitration." Wolff aff. at ¶ 18; see Fein aff. at ¶ 9. Plaintiff has invoked the Arbitration Agreement and served an Amended Arbitration Complaint on Witkop, which Witkop answered June 8, 2017. See Fein aff. at ¶¶ 17, 19 & Exs. K & M; Brennan Opposition aff. at ¶ 4. No arbitration date has yet been scheduled. Wolff aff. at ¶ 4. Plaintiff's and Witkop's submissions do not indicate whether either has selected an arbitrator, or whether the neutral arbitrator has been selected.

On March 23, 2016, counsel for Plaintiff executed the stipulation of discontinuance, wherein Plaintiff agreed to "discontinue [the action] against [Witkop] only, with prejudice." Fein aff. at ¶ 11 & Ex. G. Witkop acknowledges Plaintiff "entered into [the] Arbitration Agreement with [Witkop] voluntarily discontinuing his State court action against [Witkop] in consideration for binding arbitration with [Witkop]." Id. at ¶ 9 (emphasis added). "This [Arbitration] Agreement inevitably led the plaintiff to discontinue the plaintiff's trial court claims against defendant Wittkop [sic], in consideration for binding arbitration." Schultz aff. at ¶ 5. Witkop, with the consent of Plaintiff's counsel, had not then responded to the Complaint. See Affidavit of Victor L. Prial, Esq. ("Prial"), sworn to May 5, 2015 ("Prial aff."), at ¶ 10³ ; see Fein aff. at ¶ 9.

When the remaining Defendants did not sign this stipulation of discontinuance, Witkop moved on May 12, 2016, for an order of discontinuance pursuant to N.Y. C.P.L.R. § 3217(b). Fein aff. at ¶ 12 & Ex. H (Notice of Motion). In support of this motion, counsel for Witkop stated:

Dr. Witkop has not joined issue in this action because Plaintiff and Defendant Dr. Witkop are parties to an agreement whereby Plaintiff agreed to arbitrate any dispute as to malpractice against Dr. Witkop. Accordingly, Plaintiff has agreed to discontinue his claims as against Dr. Witkop asserted in this litigation. Plaintiff's claims against Dr. Witkop will be arbitrated.

Prial aff. at ¶ 5.

By Order dated June 27, 2016 [Ex. I to Fein aff.], the Court granted Witkop's unopposed motion for an order of discontinuance and deleting Witkop from the caption, and ordered the proceeding be discontinued as against Witkop, with prejudice.

On September 12, 2017, Kerrigan commenced a third-party action for contribution and indemnification against Witkop, "seeking to preserve his rights for common law indemnity and/or contribution against Witkop." Brennan Opposition aff. at ¶ 6; see Fein aff. at ¶ 24 & Ex. R (Third–Party Summons and Complaint). "Dr. Kerrigan commenced the Third–Party Action [against Witkop] to prevent the possibility of divergent results or a double recovery." Affirmation of Timothy S. Brennan in Response to Close Cross–Motion dated December 29, 2017 ("Brennan Response aff."), at ¶ 5. In his Answer to Kerrigan's Third–Party Complaint ("Witkop Answer") [Ex. S to Fein aff.], Witkop asserted several affirmative defenses, including: (1) "in the event of any award made to the plaintiff, [Witkop] is entitled to a Set–Off with respect to the amounts of any and all payments made to the plaintiff in settlement of any claims arising out of the claims of damages or injuries alleged in this action pursuant to N.Y. General Obligations Law § 15–108"; and, (2) Witkop "is already a party to a binding Arbitration pursuant to a duly executed Arbitration Agreement." Witkop Answer [Ex. S to Fein aff.] at ¶¶ 14–15.

Plaintiff is actively pursuing arbitration against Witkop, although an arbitration date has not yet been scheduled. Wolff aff. at ¶ 4; see Brennan Opposition aff. at ¶ 9. Plaintiff "has not executed any release/settlement, received payment or obtained any judgment to date against Witkop." Wolff aff. at ¶ 4; see Brennan Opposition aff. at ¶ 9. "Joint discovery in [this] State Court action and plaintiff's binding Arbitration against [Witkop] [has] proceeded in the ordinary course." Fein aff. at ¶ 14; Schultz aff. at ¶ 15 ("discovery [in the State Court action] can continue in the ordinary course"). By letter to counsel dated October 13, 2017, and at the request of Plaintiff's counsel, the Court administratively set aside two weeks (October 1, 2018, through October 4, 2018; and October 9, 2018, through October 12, 2018) for trial, pending receipt of a filed note of issue. No note of issue has yet been filed.

DISCUSSION

Before the Court are two requests for relief: (1) Witkop's...