Proano v. Gutman

• Decision Date: 21 December 2022
• Docket Number: 2019-06556, 2019-12895, 2019-14155,Index No. 607237/15
• Parties: Consuelo PROANO, etc., appellant, v. David GUTMAN, et al., defendants, Alice Kim, et al., respondents.
• Court: New York Supreme Court — Appellate Division

211 A.D.3d 978

180 N.Y.S.3d 279

Consuelo PROANO, etc., appellant,

v.David GUTMAN, et al., defendants,Alice Kim, et al., respondents.

2019-06556, 2019-12895, 2019-14155

Index No. 607237/15

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

Argued—October 14, 2022

December 21, 2022

Silberstein, Awad & Miklos, P.C. (Veronica K. Sewnarine, Joseph P. Awad, and Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac ], of counsel), for appellant.

Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, NY (Lauren B. Bristol of counsel), for respondent Alice Kim.

Law Offices of Benvenuto & Slattery (Rubin Paterniti Gonzalez Kaufman, LLP, New York, NY [Juan C. Gonzalez ], of counsel), for respondents Jorge L. Gardyn and Jorge L. Garden, M.D., F.A.C.P., P.C.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice and wrongful death, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), dated April 5, 2019, (2) a judgment of the same court dated May 17, 2019, and (3) a judgment of the same court dated November 22, 2019. The order, insofar as appealed from, (a) granted that branch of the motion of the defendant Alice Kim which was pursuant to CPLR 3211(a)(5) to dismiss the second cause of action insofar as asserted against her, (b) granted that branch of the unopposed motion of the defendant Mir Javed Iqbal which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him, (c) granted the motion of the defendants Jorge L. Gardyn and Jorge L. Garden, M.D., F.A.C.P, P.C., for summary judgment dismissing the complaint insofar as asserted against them, and (d) denied, as academic, those branches of the plaintiff's cross motion which were to preclude the defendants Alice Kim, Jorge L. Gardyn, and Jorge L. Garden, M.D., F.A.C.P., P.C., from limiting their liability pursuant to CPLR article 16. The judgment dated May 17, 2019, upon the order, is in favor of the defendant Mir Javed Iqbal and against the plaintiff dismissing the complaint insofar as asserted against that defendant. The judgment dated November 22, 2019, insofar as appealed from, upon the order, is in favor of the defendant Alice Kim and against the plaintiff dismissing the second cause of action insofar as asserted against that defendant.

ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendant Alice Kim which was pursuant to CPLR 3211(a)(5) to dismiss the second cause of action insofar as asserted against her, and that branch of the unopposed motion of the defendant Mir Javed Iqbal which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him, and denied, as academic, that branch of the plaintiff's cross motion which was to preclude the defendant Alice Kim from limiting her liability pursuant to CPLR article 16 is dismissed; and it is further,

ORDERED that the order is modified, on the law, by (1) deleting the provision thereof granting that branch of the motion of the defendants Jorge L. Gardyn and Jorge L. Garden, M.D., F.A.C.P, P.C., which was for summary judgment dismissing the second cause of action insofar as asserted against them, and (2) deleting the provision thereof denying, as academic, the branch of the plaintiff's cross motion which was to preclude those defendants from limiting their liability pursuant to CPLR article 16; as so modified, the order is affirmed insofar as reviewed; and it is further,

ORDERED that the appeal from the judgment dated May 17, 2019, is dismissed; and it is further,

ORDERED that the judgment dated November 22, 2019, is reversed insofar as appealed from, on the law, that branch of the motion of the defendant Alice Kim which was pursuant to CPLR 3211(a)(5) to dismiss the second cause of action insofar as asserted against her is denied, the order is modified accordingly, the provision of the order denying, as academic, that branch of the plaintiff's cross motion which was to preclude that defendant from limiting her liability pursuant to CPLR article 16 is vacated; and it is further,

ORDERED that the matter is remitted to the Supreme Court, Nassau County, for a new determination in accordance herewith of that branch of the motion of the defendants Jorge L. Gardyn and Jorge L. Garden, M.D., F.A.C.P, P.C., which was for summary judgment dismissing the second cause of action insofar as asserted against them, and for a determination on the merits of those branches of the plaintiff's cross motion which were to preclude the defendants Alice Kim, Jorge L. Gardyn and Jorge L. Garden, M.D., F.A.C.P, P.C., from limiting their liability pursuant to CPLR article 16; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff payable by the defendant Alice Kim and the defendants Jorge L. Gardyn and Jorge L. Garden, M.D., F.A.C.P, P.C., appearing separately and filing separate briefs.

The appeal from so much of the order as granted that branch of the motion of the defendant Alice Kim which was pursuant to CPLR 3211(a)(5) to dismiss the second cause of action insofar as asserted against her and denied, as academic, that branch of the plaintiff's cross motion which was to preclude the defendant Alice Kim from limiting her liability pursuant to CPLR article 16 must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment dated November 29, 2019 (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). Additionally, the appeal from so much of the order as granted that branch of the unopposed motion of the defendant Mir Javed Iqbal which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him must be dismissed because no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511 ; Rodriguez–Dominguez v. Blackstone Contrs., LLC, 191 A.D.3d 817, 817, 138 N.Y.S.3d 370 ). Further, since the judgment dated May 17, 2019, was entered upon the plaintiff's default in opposing the motion of the defendant Mir Javed Iqbal, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him, the appeal from the judgment dated May 17, 2019, must be dismissed (see U.S. Bank N.A. v. Fuller–Watson, 197 A.D.3d 764, 766, 150 N.Y.S.3d 579 ; HCA Equip. Fin., LLC v. Mastrantone, 118 A.D.3d 850, 851, 987 N.Y.S.2d 240 ). The issues raised on the appeal from so much of the order as granted that branch of the motion of the defendant Alice Kim which was pursuant to CPLR 3211(a)(5) to dismiss the second cause of action insofar as asserted against her and denied, as academic, that branch of the plaintiff's cross motion which was to preclude that defendant from limiting her liability pursuant to CPLR article 16 are brought up for review and have been considered on the appeal from the judgment dated November 22, 2019 (see CPLR 5501[a][1] ).

The decedent, Cesar Proano, died of liver cancer

on November 9, 2013, at the age of 69. The defendant Jorge L. Gardyn was the decedent's primary care physician. The defendant Mir Javed Iqbal was the decedent's hematologist/oncologist. In March 2012, the decedent underwent a CT scan

which was interpreted by the defendant Alice Kim, a radiologist.

On November 9, 2015, the plaintiff, as administrator of the decedent's estate, commenced this action against Kim, Iqbal, Gardyn, Gardyn's medical office, Jorge L. Garden, M.D., F.A.C.P., P.C., and another individual, alleging causes of action to recover damages for medical malpractice and wrongful death. Following discovery, Kim moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred. Iqbal separately moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred. Further, the defendants Jorge L. Gardyn and Jorge L. Garden, M.D., F.A.C.P, P.C. (hereinafter together the Gardyn defendants), moved for summary judgment dismissing the complaint insofar as asserted against them, contending that the action was time-barred, that their care and treatment of the decedent did not deviate from the accepted standard of care, and that any departure was not a proximate cause of the decedent's death. The plaintiff only opposed the motions of Kim and the Gardyn defendants and cross-moved to preclude the defendants from limiting their liability pursuant to CPLR article 16.

The Supreme Court, inter alia, granted that branch of Kim's motion which was pursuant to CPLR 3211(a)(5) to dismiss the second...