Public Adm'r v. Levine

• Decision Date: 25 August 2016
• Citation: 2016 N.Y. Slip Op. 05896,142 A.D.3d 467,37 N.Y.S.3d 475
• Parties: The PUBLIC ADMINISTRATOR, as Administrator of the Estate of Ronald Simpson, Plaintiff–Respondent, v. William N. LEVINE, M.D., Defendant–Appellant, New York Presbyterian Hospital–Columbia, Presbyterian Center, Defendant.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 467

37 N.Y.S.3d 475

2016 N.Y. Slip Op. 05896

The PUBLIC ADMINISTRATOR, as Administrator of the Estate of Ronald Simpson, Plaintiff–Respondent,

v. William N. LEVINE, M.D., Defendant–Appellant,New York Presbyterian Hospital–Columbia, Presbyterian Center, Defendant.

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

Aug. 25, 2016.

Marshall Dennehey Warner Coleman & Goggin, P.C., New York (Michael P. Kelly of counsel), for appellant.

Law Offices of Annette G. Hasapidis, Mt. Kisco (Annette G. Hasapidis of counsel), for respondent.

TOM, J.P., MAZZARELLI, MANZANET–DANIELS, KAPNICK, KAHN, JJ.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered August 11, 2015, which, to the extent appealed from as limited by the briefs, denied defendant doctor's motion to dismiss the complaint for failure to timely substitute a representative for Ronald Simpson, and granted the Public Administrator's motion to be substituted for Simpson as the plaintiff in the action and to amend the caption and pleadings to reflect such substitution, affirmed, without costs.

In this action, Simpson alleged medical malpractice arising from surgery performed on him commencing when he was approximately 37 years old, in July 2005, and continuing until July 2006, by defendant-appellant Levine at defendant the New York and Presbyterian Hospital (sued here as New York Presbyterian Hospital–Columbia Presbyterian Center), to address an injury to the right knee that Simpson had sustained in an accident.

On February 21, 2008, Simpson and his wife, Walnisha Simpson, suing derivatively, commenced the instant action. On September 9, 2008, Supreme Court issued a preliminary conference order directing the release to the parties of hospital authorizations, records related to prior anterior cruciate ligament (ACL) surgery, and IRS records from 2002 to September 2008 within 30 days of the date of the order.

Ronald Simpson's deposition was taken in November 2010 and December 2010. At that time, Simpson, the father of eight children, had been divorced, allegedly because of his inability to work due to the malpractice of the defendants. Prior to the accident resulting in his knee injury, he had worked as a porter, earning approximately $19,000 per year.

On October 25, 2011, Simpson, then age 43, was hit by a livery cab while crossing the street and then was struck immediately by a private sanitation truck. He was taken by ambulance to Lincoln Hospital, where he was pronounced dead.

Upon Simpson's death, this action was automatically stayed. Two of his children disputed who should serve as the estate administrator and submitted petitions for letters testamentary in Surrogate's Court, Bronx County. Following numerous court appearances in that court, on May 3, 2013, the Public Administrator was appointed by the Surrogate's Court as the administrator of Simpson's estate.

Thereafter, the Public Administrator sought to retain counsel to continue the prosecution of this action. Due to drafting errors in the retainer agreement, however, counsel was not engaged until January 9, 2014. Counsel for the Public Administrator avers that she had begun her maternity leave in December 2013 and did not return to work until April 2014. She further maintains that she did not realize that the retainer had been left unaddressed until May 22, 2014, when defendant Levine filed a motion, pursuant to CPLR 1021, to dismiss the action for failure to timely substitute an estate representative for Simpson. By motion dated June 10, 2014, the Public Administrator moved for substitution. As stated above, by order dated August 11, 2015, Supreme Court denied defendant's motion and granted the Public Administrator's motion, substituting the Public Administrator for Ronald Simpson as the named plaintiff and removing Walnisha Simpson, decedent's former wife, as a named plaintiff.

Supreme Court providently exercised its discretion in denying defendant's motion and in granting the Public Administrator's motion under CPLR 1021. In order to defeat a motion to dismiss a medical malpractice complaint for failure to obtain a timely substitution of an estate representative pursuant to CPLR 1021, a plaintiff must provide “a reasonable excuse for the delay” and make “a prima facie showing of merit” (Wynter v. Our Lady of Mercy Med. Ctr., 3 A.D.3d 376, 378, 771 N.Y.S.2d 94 [1st Dept.2004], citing Schwartz v. Montefiore Hosp. & Med. Ctr., 305 A.D.2d 174, 176, 761 N.Y.S.2d 5 [1st Dept.2003] ). In order to prevail on a CPLR 1021 motion to dismiss, a defendant must show that the plaintiff's failure to secure substitution in a timely fashion resulted in undue prejudice (Noriega v. Presbyterian Hosp. in City of N.Y., 305 A.D.2d 220, 221, 761 N.Y.S.2d 18 [1st Dept.2003] ).

With regard to whether the Public Administrator in this case has demonstrated a reasonable excuse for the delay in filing a motion for substitution, in Wynter, a case with striking factual similarities to the instant case, this Court found that the record established that there had been an ongoing dispute over who represented the plaintiffs and that the plaintiffs' counsel had been rendered inactive in the case due to a life-threatening and extended illness (3 A.D.3d at 378, 771 N.Y.S.2d 94 ). Here, the record shows that there was a dispute between two of Simpson's children as to who would administer the estate, and that the Public Administrator's counsel was on maternity leave for five months. In addition, in this case, inadvertent errors in drafting the agreement to retain counsel accounted for some of the delay. Thus, here, as in Wynter, there are circumstances present that “adequately explain[ ] the delay in issue” (id. ).

With respect to determining whether the Public Administrator has made a prima facie showing of the merit of the underlying medical malpractice action, here, as in Wynter, we may look to the underlying pleadings, including the amended complaint, and the verified bill of particulars.¹ In this case, these documents, together with Simpson's deposition, adequately establish the merit of the underlying action without the need for a physician's affirmation (see Leonardelli v. Presbyterian Hosp. in City of N.Y., 288 A.D.2d 105, 106, 733 N.Y.S.2d 391 [1st Dept.2001] [“Plaintiff's bill of particulars and verified complaint allege sufficient detailed facts to establish that the case has merit....”]; Ronsco Constr. Co. v. 30 E. 85th St. Co., 219 A.D.2d 281, 641 N.Y.S.2d 33 [1996] [“Plaintiff's factually scant showing as to the merit of its cause of action is nevertheless sufficient under the circumstances, since all it need show is a substantial possibility of success in the action” (internal quotation marks omitted) ] ).²

Furthermore, defendant's “bare allegations of prejudice are insufficient to defeat a motion for substitution especially where, as here, the case is likely to turn mainly on medical records rather than witnesses' memories” (Noriega, 305 A.D.2d at 221, 761 N.Y.S.2d 18 ), and where, as here, defendant has apparently been in possession of the relevant records since shortly after disclosure was ordered in September 2008 (Schwartz, 305 A.D.2d at 176, 761 N.Y.S.2d 5 ). The sole ground defendant offers as demonstrating prejudice to him, i.e., the passage of time, is not, in itself, a sufficient basis for finding prejudice (Appleby v. Suggs, 135 A.D.3d 623, 23 N.Y.S.3d 235 [1st Dept.2016] ; Peterson v. City of New York, 286 A.D.2d 287, 289, 730 N.Y.S.2d 58 [1st Dept.2001] ). Defendant does not deny that this case turns on medical records or that he is in possession of them. He has mentioned no facts as to prejudice, even when he complained of the delay that had occurred in the case prior to Simpson's death.

In sum, the Public Administrator has provided a reasonable explanation for the delay in seeking substitution and has made a prima facie showing of merit on the basis of the pleadings, deposition testimony and other supporting documents, while defendant has failed to demonstrate prejudice. Under these circumstances, and in light of the strong public policy favoring disposition of cases such as this one on their merits (Peters v. City of N.Y. Health & Hosps. Corp., 48 A.D.3d 329, 851 N.Y.S.2d 527 [1st Dept.2008] ; Noriega, 305 A.D.2d at 221, 761 N.Y.S.2d 18 ), and “our liberal policy to permit amended pleadings” (Wynter, 3 A.D.3d at 379, 771 N.Y.S.2d 94 ), adequate cause has been shown as to why this action should not have been dismissed for failure to make a timely motion for substitution has been shown (see Schwartz, 305 A.D.2d at 176, 761 N.Y.S.2d 5 ).

All concur except TOM, J.P. who dissents in a memorandum as follows.

TOM, J.P. (dissenting).

The Public Administrator's failure to submit a physician's affirmation of merit and failure to provide justification, other than law office failure, for its more than one-year delay in seeking substitution following the issuance of letters testamentary mandates the denial of its motion for substitution and the grant of defendant doctor's motion to dismiss the complaint pursuant to CPLR 1021 (see Rose v. Frankel, 83 A.D.3d 607, 608, 920 N.Y.S.2d 912 [1st Dept.2011] ; see also Terpis v. Regal Hgts. Rehabilitation & Health Care Ctr., Inc., 108 A.D.3d 618, 619, 968 N.Y.S.2d 380 [2d Dept.2013] ). Accordingly, I respectfully dissent.

This medical malpractice action arises from surgery performed by defendant William N. Levine, M.D. on Ronald Simpson's right knee at defendant the New York and Presbyterian Hospital (sued here as New York Presbyterian Hospital–Columbia Presbyterian Center). On February 21, 2008, Simpson, and his wife, Walnisha Simpson, suing derivatively, commenced this action against defendants. However, on October 24, 2011, Ronald Simpson died, and the matter was automatically stayed.

Between May 2012 and August 2012, defendants sent at least three correspondences to Simpson's counsel seeking to obtain the identity of the administrator of Simpson's estate. On May 3,...