Tolkoff v. Goldstein

• Decision Date: 29 July 2020
• Docket Number: 2016-04230,2016-01246,Index No. 11319/06,2016-04224,2016-04222,2016-02533,2016-04223
• Citation: 128 N.Y.S.3d 620,185 A.D.3d 1085
• Parties: Donna TOLKOFF, etc., Appellant, v. Margaret M. GOLDSTEIN, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 1085

128 N.Y.S.3d 620

Donna TOLKOFF, etc., Appellant,

v.Margaret M. GOLDSTEIN, etc., et al., Respondents.

2016-01246

2016-02533

2016-04222

2016-04223

2016-04224

2016-04230

Index No. 11319/06

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

Argued - November 12, 2019

July 29, 2020

Alan Ripka & Associates, LLP (Pollack Pollack Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Jillian Rosen ], of counsel), for appellant.

Helwig, Henderson, Gray & Spinola, LLP, Syosset, N.Y. (Brian T. Reilly of counsel), for respondent Long Island Diagnostic Imaging.

Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Robert A. Lifson of counsel), for respondent John T. Mather Memorial Hospital.

Perry, Van Etten, Rozanski & Primavera, LLP, Melville, N.Y. (Geoffrey H. Pforr and Joseph Strang of counsel), for respondents Dimitri Pyrros and Zelen & Pyrros, M.D., P.C.

Mauro Lilling Naparty LLP, Woodbury, N.Y. (Seth M. Weinberg, Melissa A. Danowski, Albanes & Albanes LLP, Santangelo Benvenuto & Slattery, Gabriele & Marano, LLP, and Fumuso, Kelly, Swart, Farrell, Polin & Christesen, LLP, of counsel), for respondents Jay M. Barbakoff, Jagpreet Dhillon, Anthony C. Theodoris, Walter Szcupak, North Shore Pulmonary Associates, and Margaret M. Goldstein.

Wagner, Doman, Leto & Di Leo, P.C., Mineola, N.Y. (Nicholas J. Albanese and Gary Wagner of counsel), for respondent Long Island Medical Imaging.

ALAN D. SCHEINKMAN, P.J., COLLEEN D. DUFFY, BETSY BARROS, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Daniel Martin, J.), dated November 18, 2015, (2) a judgment of the same court entered January 15, 2016, (3) a judgment of the same court entered February 18, 2016, (4) a judgment of the same court entered February 23, 2016, (5) a judgment of the same court also entered February 23, 2016, and (6) a judgment of the same court entered March 3, 2016. The order granted the separate motions of the defendant Margaret M. Goldstein, as administrator of the estate of David Goldstein, the defendants North Shore Pulmonary Associates, Walter Szcupak, and Anthony C. Theodoris, the defendant Jay M. Barbakoff, the defendant Jagpreet Dhillon, the defendant Long Island Medical Imaging, the defendants Dimitri Pyrros and Zelen & Pyrros, M.D., P.C., the defendant John T. Mather Memorial Hospital, and the defendant Long Island Diagnostic Imaging to dismiss the complaint insofar as asserted against each of them and denied the plaintiff's cross motion to extend the time to file a note of issue. The judgments, upon so much of the order as granted the separate motions of the defendants North Shore Pulmonary Associates, Walter Szcupak, and Anthony C. Theodoris, the defendant John T. Mather Memorial Hospital, the defendant Long Island Medical Imaging, the defendants Dimitri Pyrros and Zelen & Pyrros, M.D., P.C., and the defendant Jagpreet Dhillon to dismiss the complaint insofar as asserted against each of them, are in favor of those defendants and against the plaintiff dismissing the complaint insofar as asserted against each of them.

ORDERED that the appeal from so much of the order as granted the separate motions of the defendants North Shore Pulmonary Associates, Walter Szcupak, and Anthony C. Theodoris, the defendant John T. Mather Memorial Hospital, the defendant Long Island Medical Imaging, the defendants Dimitri Pyrros and Zelen & Pyrros, M.D., P.C., and the defendant Jagpreet Dhillon to dismiss the complaint insofar as asserted against each of them is dismissed, without costs or disbursements; and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, on the facts, and in the exercise of discretion, without costs or disbursements, and the separate motions of the defendant Margaret M. Goldstein, as administrator of the estate of David Goldstein, the defendant Jay M. Barbakoff, and the defendant Long Island Diagnostic Imaging to dismiss the complaint insofar as asserted against each of them are denied, and the plaintiff's cross motion to extend the time to file a note of issue is granted on condition that, within 20 days after service upon the plaintiff's attorney of a copy of this decision and order, the plaintiff shall file a note of issue and pay a sanction in the amount of $1,000 to each of the eight groups of defendants filing separate motions to dismiss; in the event the condition is not complied with, then the plaintiff's cross motion to extend the time to file a note of issue is denied; and it is further,

ORDERED that the judgments are reversed, on the law, on the facts, and in the exercise of discretion, without costs or disbursements, the separate motions of the defendants North Shore Pulmonary Associates, Walter Szcupak, and Anthony C. Theodoris, the defendant John T. Mather Memorial Hospital, the defendant Long Island Medical Imaging, the defendants Dimitri Pyrros and Zelen & Pyrros, M.D., P.C., and the defendant Jagpreet Dhillon to dismiss the complaint insofar as asserted against each of them are denied, and the order is modified accordingly.

The appeal from so much of the order as granted the separate motions of the defendants North Shore Pulmonary Associates, Walter Szcupak, and Anthony C. Theodoris, the defendant John T. Mather Memorial Hospital, the defendant Long Island Medical Imaging, the defendants Dimitri Pyrros and Zelen & Pyrros, M.D., P.C., and the defendant Jagpreet Dhillon to dismiss the complaint insofar as asserted against each of them must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgments in the action with respect to those defendants (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from those portions of the order are brought up for review and have been considered on the appeal from the judgments (see CPLR 5501[a][1] ).

Contrary to the determination of the Supreme Court, the separate motions of the defendants to dismiss the complaint insofar as asserted against each of them, inter alia, pursuant to CPLR 3216 should have been denied. " ‘[W]hile the failure to comply with a court order directing the filing of a note of issue can, in the proper circumstances, provide the basis for the dismissal of a complaint under CPLR 3216, courts are prohibited from dismissing an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met’ " ( Neary v. Tower Ins., 94 A.D.3d 723, 724, 941 N.Y.S.2d 277, quoting Banik v. Evy Realty, LLC, 84 A.D.3d 994, 996, 925 N.Y.S.2d 333 ). " ‘A 90–day demand to file a note of issue is one of the statutory preconditions’ " ( Atmara, Inc. v. Panoramic Ace Props., Inc., 151 A.D.3d 922, 923, 58 N.Y.S.3d 414...