Selwitshka v. Glens Falls Hospital

• Decision Date: 26 May 1976
• Citation: Selwitshka v. Glens Falls Hospital, 393 N.Y.S.2d 848, 89 Misc.2d 519 (N.Y. Sup. Ct. 1976)
• Parties: Martha Susan SELWITSHKA, Plaintiff, v. GLENS FALLS HOSPITAL et al., Defendants.
• Court: New York Supreme Court

Page 848

393 N.Y.S.2d 848

89 Misc.2d 519

Martha Susan SELWITSHKA, Plaintiff, v. GLENS FALLS HOSPITAL et al., Defendants.

Supreme Court, Special Term, Warren County.

May 26, 1976.

John S. Hall, Warrensburg (Ronald L. Newell, Warrensburg, of counsel), for plaintiff.

McPhillips, Fitzgerald, Meyer & McLenithan, Glens Falls (Martin A. Meyer, Glens Falls, of counsel), for defendants Glens Falls Hospital and Tullio Mereu.

MEMORANDUM DECISION

JAMES GIBSON, Justice.

Motion by defendants Glens Falls Hospital and Tullio Mereu for an order dismissing this medical malpractice action, as to them, for failure to serve a complaint (CPLR 3012(b)).

Cross motion by plaintiff for an order excusing her default and extending her time for service of the complaint (CPLR 2004).

The malpractice asserted occurred in early 1964, when plaintiff was 11 years old. This action was commenced by service of a summons, without a complaint, on defendant Hospital on March 25, 1974 and defendant Mereu on May 7, 1974. Notices of appearance, with demands for service of the complaint, were served on behalf of defendant Hospital on April 10, 1974 and on behalf of defendant Mereu on May 16, 1974. The complaint was served on defendants' attorneys, by mail, shortly before March 6, 1976, or almost two years after defendants' notice of appearance and demand, and was rejected as not timely served.

The sole ground asserted by plaintiff in opposition to the motion to dismiss and as the basis of her cross motion to excuse her default is that her attorney justifiably relied upon negotiations of settlement had with defendants' liability insurance carrier as postponing the necessity of serving a complaint until a time about one month before the time service was actually attempted and rejected. ¹ Defendants contend, however, that settlement negotiations were concluded and the insurance carrier's offer of settlement withdrawn by the carrier's letter of July 8, 1975, stating: 'In reference to our outstanding offer to you in the amount of $2500. made on April 4, 1975, this is to advise that if Releases are not received at this office within ten days following posting of this letter you may consider our offer withdrawn.' The carrier is designated on its letterhead as 'The Hartford' and the letter was signed 'W. D. Jennings, Claims Supervisor'.

The letter of July 8, 1975 had been preceded by the carrier's letter of April 4, 1975 embodying an offer of settlement. Plaintiff's attorney's associate, Mr. Newell, states in his affidavit:

Your deponent does not recall whether talks were had between letters, but does know that this type of letter is commonly used to prompt a settlement. That it is your deponent's recollection that subsequent to this letter, further settlement talks were had, as it was your deponent's practice to frequently stop and speak with claims representatives at the offices of the HARTFORD INSURANCE COMPANY as aforesaid. That during this time period, your deponent settled at least six separate cases and probably discussed six others. That it is your deponent's recollection, that the instant case was also included in these discussions. That sometime in the early part of 1976, which I believe to be February, following a conference on another action involving the HARTFORD INSURANCE COMPANY, your deponent spoke with WALTER JENNINGS and stated to him in words or substance that we should either settle between ourselves or let a jury decide the action, at which time, WALTER JENNINGS, stated that he had been advised by the attorneys for the defendants that the plaintiff was in default; and as such, he would stand on his letter of July 8, 1975. Shortly after being apprised of this information, your deponent caused to be issued the Complaint dated March 4, 1976, which was returned by the defendants and which precipitated the present motion.

Mr. Newell's affidavit, couched as it is in uncertain and indefinite language, is countered by Mr. Jennings' affidavit of April 5, 1976, ² unequivocally stating: that there was no response to the April 4, 1975 letter which tendered an offer of settlement (as to which nonresponse, Mr. Newell states he 'does not recall' (Supra, p. 520)) 'and the matter continued in abeyance without negotiations or any other response'; that there was never a response to his letter of July 8, 1975 withdrawing the settlement offer; that, according to his recollection, Mr. Newell was in the carrier's office in December, 1975 or January, 1976 to interview another claims representative about another case and that Mr. Newell, on passing Mr. Jennings' desk, 'mentioned' the file in the instant case and Mr. Jennings stated to him that the file had been closed. As against this, Mr. Newell's averments are simply that he 'does not recall whether talks were had between letters'; that it is his 'recollection' that talks were had later, but it must be noted that his 'recollection' is not truly that, but rests on his 'practice' to 'frequently stop and speak with claims representatives' and in this instance there is no hint as to what was said, if there were discussions, and no suggestion of any intraoffice note or memorandum thereof or of any report to his associate, Mr. Hall, or to their client. Mr. Newell's clearly conclusory and nonspecific statements as to the carrier's 'constant assurances' that settlement efforts would 'be exhausted' cannot, of course, be given evidentiary weight; and the carrier doubtless considered that all efforts were in fact exhausted when its offers met with no response. It is important to note that plaintiff makes no claim of any response to the April 4, 1975 written offer or to the July 8, 1975 letter which kept the offer alive for 10 days, pending final withdrawal at the end of that time. Mr. Newell's equivocal, nonspecific averments, candid and truthful as they doubtless are, simply do not rise to the level of proof of a quality sufficient to satisfy plaintiff's burden of explanation for the delay; and particularly so, in the light of the terse, simple and unequivocal language of the July 8, 1975 letter. Whatever the attorney's impression of that letter, elementary prudence required either the drafting of the uncomplicated complaint that was subsequently drawn or some other action in response to the carrier's letter.

No support for plaintiff's motion is to be found in the statements in Mr. Newell's affidavit (which seem to be advanced as a separate but subsidiary ground) that his 'recollection' was that Mr. Jennings and he agreed that 'settlement negotiations should be exhausted before further action' and that the carrier gave 'further assurances that settlement attempts would first be exhausted'. Whatever effect, if any, might otherwise be given this nebulous arrangement, it is obvious, first, that either party was entitled to form a judgment as to when efforts at compromise should be 'exhausted' and, second, that upon plaintiff's attorney's failure to respond to the April 4, 1975 written offer or to the same offer as extended 10 days from the date of the July 8, 1975 letter, the carrier was fully warranted in concluding that all efforts had indeed been exhausted.

Given the conceded premise that with his medical expert's opinion in hand, plaintiff's attorney was at all times able to prepare the uncomplicated complaint that he did eventually prepare, his inaction following his receipt of the April 4, 1975 letter and his similar inaction, for almost eight months, following the July 8, 1975 letter, might well be deemed law office failure on account of which, as plaintiff's brief concedes, no remedy lies. But, for purposes of the argument at least, it will be assumed that the record demonstrates something other than a breakdown in law office management. The case then turns wholly upon the issue in respect of the alleged negotiations, as hereinbefore and hereinafter discussed.

Entirely unpersuasive are Mr. Hall's averments as to a pattern of conduct commonly in vogue as between carriers and lawyers, according to which spoken and written words are to be interpreted, not in the light of their plain meaning, but according to an esoteric code or index of gambits. But the Appellate Division, Third Department, has already disposed of this claim of custom, holding that the 'contention * * * that a delay of three or four months is the general custom among lawyers in the locality is inadequate to justify ignoring the plain requirements of the Civil Practice Law and Rules' (Johnson v. Johnson, 45 A.D.2d 899, 357 N.Y.S.2d 208 (1974)). ³ Further, and in the existent practice of almost complete disclosure, the nebulous arguments as to the tactical reasons for withholding a complaint while settlement talks proceed are as unconvincing as they are extra-legal. In this case, as is clear, all the information necessary to the preparation of a complaint was before plaintiff's attorney when the bare summons was served and, most certainly, when notices of appearance and demands were thereupon served; and this court...