Udell v. Naghavi

Decision Date15 March 2011
Citation919 N.Y.S.2d 79,2011 N.Y. Slip Op. 01997,82 A.D.3d 960
PartiesJohn UDELL, et al., appellants,v.Ray S. NAGHAVI, etc., et al., respondents.
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. (Norman H. Dachs and Jonathan A. Dachs of counsel), for appellants.Albanese & Albanese LLP, Garden City, N.Y. (Hyman Hacker of counsel), for respondents Ray S. Naghavi, M.D., and R.S. Naghavi, M.D., PLLC.Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., Terence S. Reynolds, and Adonaid C. Medina of counsel), for respondent Joseph Crimi, P.A.REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Nassau County (Adams, J.), entered May 18, 2010, which granted the motion of the defendant Joseph Crimi, P.A., for summary judgment dismissing the complaint insofar as asserted against him and the motion of the defendants Ray S. Naghavi, M.D. and R.S. Naghavi, M.D., PLLC, for summary judgment dismissing, as time-barred pursuant to CPLR 214–a, so much of the complaint insofar as asserted against them as was based upon their alleged acts or omissions occurring prior to November 27, 2005, (2) from a judgment of the same court dated June 29, 2010, which, upon the order entered May 18, 2010, is in favor of the defendants and against them dismissing the complaint insofar as asserted against the defendant Joseph Crimi, P.A., and dismissing the causes of action insofar as asserted against the defendants Ray S. Naghavi, M.D., and R.S. Naghavi, M.D., PLLC, which were based upon alleged acts or omissions occurring prior to November 27, 2005, and (3), as limited by their brief, from so much of an order of the same court entered August 26, 2010, as, upon reargument, adhered to the prior determination in the order entered May 18, 2010.

ORDERED that the appeal from the order entered May 18, 2010, is dismissed; and it is further,

ORDERED that the judgment is modified, on the law, by deleting the provision thereof dismissing the complaint insofar as asserted against the defendant Joseph Crimi, P.A., insofar as it is based upon his alleged acts or omissions occurring on or after November 27, 2005; as so modified, the judgment is affirmed, and that branch of the motion of the defendant Joseph Crimi, P.A., which was for summary judgment dismissing the complaint insofar as asserted against him for acts or omissions occurring on or after November 27, 2005, is denied, and the order entered May 18, 2010, is modified accordingly; and it is further,

ORDERED that the appeal from the order dated August 23, 2010, is dismissed; and it is further,

ORDERED that one bill of costs is awarded to the defendants Ray S. Naghavi, M.D. and R.S. Naghavi, M.D., PLLC, payable by the plaintiff.

The appeal from the intermediate order entered May 18, 2010, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( 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 that order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1] ).

The appeal from the order dated August 23, 2010, also must be dismissed. It is the obligation of the appellant to assemble a proper record on appeal ( see LaSalle Bank N.A. v. Henderson, 69 A.D.3d 679, 891 N.Y.S.2d 655; Wen Zong Yu v. Hua Fan, 65 A.D.3d 1335, 885 N.Y.S.2d 605; Cohen v. Wallace & Minchenberg, 39 A.D.3d 689, 833 N.Y.S.2d 623). That record “must contain all of the relevant papers that were before the Supreme Court ( LaSalle Bank N.A. v. Henderson, 69 A.D.3d at 679, 891 N.Y.S.2d 655 [internal quotation marks omitted]; see CPLR 5526; Wen Zong Yu v. Hua Fan, 65 A.D.3d at 1335, 885 N.Y.S.2d 605). Here, the plaintiffs appeal from the order granting reargument and adhering to the original determination, but they have not included in the record any of the papers submitted on the reargument motion. Inasmuch as the record is inadequate to review the order made upon reargument, we dismiss the appeal from that order ( see LaSalle Bank N.A. v. Henderson, 69 A.D.3d 679, 891 N.Y.S.2d 655; Wen Zong Yu v. Hua Fan, 65 A.D.3d at 1335, 885 N.Y.S.2d 605).

In July 2005, the plaintiff John Udell (hereinafter the plaintiff), who was then 50 years old, was examined by the defendant Joseph Crimi, P.A., a physician's assistant, at the offices of the defendant R.S. Naghavi, M.D., PLLC. Blood tests revealed a prostate specific antigen (hereinafter PSA) level of 3.84 and a rectal examination was negative. The plaintiff returned to the office again in May 2006 because of lumbar spine symptoms and was examined by the defendant Ray S. Naghavi. No blood test to determine the plaintiff's PSA level was done at that time and no rectal examination was performed. However, blood work was done on May 10, 2006, and Crimi allegedly reviewed the laboratory report that was prepared on May 11, 2006. In 2007, another physician diagnosed the plaintiff with advanced prostate cancer and, on May 27, 2008, the plaintiff and his wife, suing derivatively, commenced this action against Naghavi and his professional corporation (hereinafter together the Naghavi defendants), and Crimi to recover damages, inter alia, for medical malpractice. The plaintiffs alleged, among other things, that Naghavi and Crimi committed malpractice in failing to order follow-up tests to ascertain the plaintiff's PSA level. Crimi moved for summary judgment dismissing the complaint insofar as asserted against him. The Naghavi defendants separately moved for summary judgment dismissing the complaint insofar as asserted against them for acts or omissions occurring prior to November 27, 2005, as barred by the statute of limitations. The Supreme Court granted the motions.

With respect to those branches of the defendants' separate motions that were based on the statute...

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    ...October 1, 2010, must be dismissed. It is the obligation of the appellant to assemble a proper record on appeal ( see Udell v. Naghavi, 82 A.D.3d 960, 919 N.Y.S.2d 79; LaSalle Bank N.A. v. Henderson, 69 A.D.3d 679, 891 N.Y.S.2d 655; Wen Zong Yu v. Hua Fan, 65 A.D.3d 1335, 885 N.Y.S.2d 605).......
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    ...accrue not on the date of actual or constructive discovery, but "on the date of the alleged wrongful act or omission." Udell v. Naghavi, 82 A.D.3d 960, 962 (2d Dep't 2011). This date, as recent cases such as Valdez and A.Q.C. illustrate, often precedes that on which a reasonably diligent pl......
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