Sharkey v. Chow

• Citation: 922 N.Y.S.2d 691,84 A.D.3d 1719,2011 N.Y. Slip Op. 03755
• Parties: Donald J. SHARKEY, Plaintiff–Appellant–Respondent,v.Joseph Lin–Yun CHOW, M.D., Celestine J. Szulewski, P.A., Springville Pediatrics and Adult Care, Defendants–Respondents,andRonald G. Basalyga, M.D., Defendant–Respondent–Appellant. (Appeal No. 2.)
• Decision Date: 06 May 2011
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1719

922 N.Y.S.2d 691

2011 N.Y. Slip Op. 03755

Donald J. SHARKEY, Plaintiff–Appellant–Respondent,

v.Joseph Lin–Yun CHOW, M.D., Celestine J. Szulewski, P.A., Springville Pediatrics and Adult Care, Defendants–Respondents,andRonald G. Basalyga, M.D., Defendant–Respondent–Appellant. (Appeal No. 2.)

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

May 6, 2011.

Law Offices of Linda J. Marsh And Arthur J. Ziller, Buffalo (Arthur Ziller of Counsel), for Plaintiff–Appellant–Respondent.Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Adam H. Cooper of Counsel), for Defendants–Respondents.Damon Morey LLP, Buffalo, Meiselman, Denlea, Packman, Carton & Eberz, P.C., White Plains (Myra I. Packman of Counsel), for Defendant–Respondent–Appellant.PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.MEMORANDUM:

Plaintiff commenced this medical malpractice action seeking damages for the alleged failure of defendants to diagnose his metastatic colon cancer. Following a trial, the jury found that defendants Joseph Lin–Yun Chow, M.D., Celestine J. Szulewski, P.A. and Springville Pediatrics and Adult Care (Springville) were not negligent and that, although defendant Ronald G. Basalyga, M.D. was negligent, his negligence was not a proximate cause of plaintiff's injuries. In appeal No. 1, plaintiff appeals from an order denying his pretrial motion to strike defendants' joint answer for failure to comply with his discovery demands pursuant to CPLR 3101(f), seeking information regarding insurance coverage with respect to Springville. In appeal No. 2, plaintiff appeals and Dr. Basalyga cross-appeals from an order that, inter alia, granted that part of plaintiff's motion pursuant to CPLR 4404(a) for a new trial in the interest of justice with respect to Dr. Basalyga and denied that part of plaintiff's motion to strike defendants' joint answer for failure to disclose insurance coverage. In appeal No. 3, plaintiff appeals from a judgment dismissing the complaint against Dr. Chow, Szulewski and Springville. In appeal No. 4, plaintiff appeals and Dr. Basalyga cross-appeals from an order that, inter alia, granted plaintiff's motion for leave to renew his motion to strike the answer at issue in appeal No. 2 and, upon renewal, adhered to its original determination.

We note at the outset that, in his appellate brief, plaintiff has raised no contentions with respect to Dr. Chow, Szulewski or Springville, and thus plaintiff has abandoned any issues with respect to those defendants ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745). We therefore dismiss appeal No. 3, and we do not address those defendants in the context of the remaining appeals. We affirm the orders in appeal Nos. 1, 2 and 4.

After the jury began deliberations but before a verdict was rendered, counsel for defendants informed plaintiff that Dr. Basalyga had excess insurance coverage and that Springville did not have a separate policy. That information had not been previously provided in response to plaintiff's demands. With respect to appeal No. 4, we conclude that Supreme Court did not abuse its discretion in determining that the failure to disclose excess coverage was not willful, contumacious or in bad faith and thus refusing to strike the answer ( cf. Perry v. Town of Geneva, 64 A.D.3d 1225, 882 N.Y.S.2d 626). In the absence of an abuse of discretion that determination will not be disturbed ( see generally Roswell Park Cancer Inst. Corp. v. Sodexo Am., LLC, 68 A.D.3d 1720, 1721, 891 N.Y.S.2d 827; Hill v. Oberoi, 13 A.D.3d 1095, 786 N.Y.S.2d 765).

We conclude in appeal No. 2 that the court did not abuse its discretion in granting that part of plaintiff's post-trial motion for a new trial in the interest of justice with respect to Dr. Basalyga. The court determined that, although the failure to disclose Dr. Basalyga's excess insurance information was not willful, contumacious or in bad faith, plaintiff was “unquestionably entitled to [that information] for use in formulating [his] trial strategy.” “The authority to grant a new trial is discretionary in nature and is vested in the trial court predicated on the assumption that the [j]udge who presides at trial is in the best position to evaluate errors therein ... Notably, [the court's]...