Schwelnus v. Urological Assocs. of L.I, P.C.

• Decision Date: 17 April 2012
• Citation: 94 A.D.3d 971,943 N.Y.S.2d 141,2012 N.Y. Slip Op. 02858
• Parties: Robert W. SCHWELNUS, respondent, v. UROLOGICAL ASSOCIATES OF L.I., P.C., et al., appellants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02858

94 A.D.3d 971

943 N.Y.S.2d 141

Robert W. SCHWELNUS, respondent,

v.UROLOGICAL ASSOCIATES OF L.I., P.C., et al., appellants.

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

April 17, 2012.

Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G. Christesen of counsel), for appellants.

Michael J. Krakower, Great Neck, N.Y., for respondent.

ANITA R. FLORIO, J.P., PLUMMER E. LOTT, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In an action to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Suffolk County(Jones, Jr., J.), dated May 31, 2011, which denied their motion for leave to renew their motion for summary judgment dismissing the complaint, which had been denied in an order of the same court dated January 6, 2011.

ORDERED that the order dated May 31, 2011, is reversed, on the law and in the exercise of discretion, with costs, the motion by the defendants for leave to renew their motion for summary judgment dismissing the complaint is granted and, upon renewal, the order dated January 6, 2011, is vacated, and the motion for summary judgment dismissing the complaint is granted.

The plaintiff alleges that the defendant physician Richard V. Musto failed to completely read a pathology report which was positive for prostate cancer in September 2004, and, as such, informed the plaintiff that the test results were negative for signs of prostate cancer.The failure to diagnose the plaintiff's prostate cancer allegedly reduced the plaintiff's chances of successful recovery.The defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff's claims were time-barred pursuant to CPLR 214–a.The Supreme Court denied the motion, inter alia, because the deposition transcripts relied upon were unsigned.Upon their motion for leave to renew, the defendants submitted, among other things, properly executed transcripts and alleged, inter alia, that the failure to submit the transcripts in admissible form was a result of law office failure.The Supreme Court denied leave to renew on the ground that the defendants had failed to present any new facts or change in the law that would have changed the court's determination.

The Supreme Court improvidently exercised its discretion in denying the defendants' motion for leave to renew their motion for summary judgment dismissing the complaint on the ground that the defendants' motion was not based upon new facts not offered on the prior motion.CPLR 2221(e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form ( seeSimpson v. Tommy Hilfiger U.S.A., Inc.,48 A.D.3d 389, 850 N.Y.S.2d 629;see alsoCoccia v. Liotti,70 A.D.3d 747, 896 N.Y.S.2d 90;Arkin v. Resnick,68 A.D.3d 692, 890 N.Y.S.2d 95).The defendants corrected their inadvertent procedural errors with respect to the transcripts and provided a reasonable justification for failing to present the transcripts in admissible form in support of their motion for summary judgment such that leave to renew should have been granted ( seeDarwick v. Paternoster,56 A.D.3d 714, 868 N.Y.S.2d 698;DeLeonardis v. Brown,15 A.D.3d 525, 790 N.Y.S.2d 686).

Upon renewal, the defendants' motion for summary judgment should have been granted.A cause of action alleging medical malpractice accrues on the date of the alleged wrongful act or omission, and, thus, the statute of limitations begins to run on that date ( seeUdell v. Naghavi,82 A.D.3d 960, 919 N.Y.S.2d 79).The date of filing of the summons and verified complaint establishes that the instant action was not commenced until June 30, 2008, which was well beyond the 2–year–and–6–month statute of limitations applicable to medical malpractice actions ( seeCPLR 214–a).Thus, the defendants satisfied their prima facie burden on summary judgment of establishing that the plaintiff commenced this...