Wynter v. Our Lady of Mercy Medical Center

• Decision Date: 15 January 2004
• Docket Number: 2141
• Citation: 3 A.D.3d 376,771 N.Y.S.2d 94,2004 NY Slip Op 00201
• Parties: CLIFTON WYNTER et al., Appellants, v. OUR LADY OF MERCY MEDICAL CENTER et al., Respondents.
• Court: New York Supreme Court — Appellate Division

3 A.D.3d 376

771 N.Y.S.2d 94

2004 NY Slip Op 00201

CLIFTON WYNTER et al., Appellants, v. OUR LADY OF MERCY MEDICAL CENTER et al., Respondents.

2141

Appellate Division of the Supreme Court of the State of New York, First Department.

January 15, 2004.

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered April 5, 2002, which granted defendants' motions to dismiss the complaint pursuant to CPLR 1021 for failure to timely substitute a representative for the deceased plaintiff and denied plaintiffs' cross motion to substitute a representative of the estate of the deceased plaintiff and to amend the complaint to include a wrongful death cause of action, unanimously reversed, on the law, without costs, the motions denied, the complaint reinstated and the cross motion granted, and the matter remanded for further proceedings.

Plaintiffs allege that when plaintiff Clifton Wynter fell on a sidewalk and injured his neck and head, an ambulance crew from defendant New York City Health and Hospitals Corporation responded and transported him to defendant medical center, where he stayed for a brief period during which he was treated by the individual medical professional defendants. The amended verified complaint alleged medical malpractice arising from defendants' failure to diagnose, stabilize and promptly treat a spinal cord injury, resulting in serious permanent physical injuries as well as mental and emotional harm. Othilda Wynter, Clifton's wife, sued for loss of consortium and services. The verified bills of particulars provide further clarification regarding the alleged departures from accepted medical practices in support of the malpractice cause of action. More specifically, plaintiffs alleged that Clifton Wynter suffered quadriplegia as a consequence of the malpractice, with resulting incontinence and bladder problems. He died intestate on December 26, 1999. Letters of administration were issued to Othilda Wynter on December 12, 2001, who subsequently moved to be substituted for decedent.

During the interim, a law firm and present counsel Bruce Katz were disputing who represented plaintiffs. The dispute regarding representation was decided by a January 17, 2001 order of Bronx County Supreme Court (Stanley Green, J.), directing that Katz represent plaintiffs.

Also during the interim, additional motion practice had ensued in the present action including dismissal motions related to the lack of progress in the litigation, during which time Katz became ill and underwent surgery. Unfortunately, in the aftermath of the destruction of the World Trade Center, Katz also was displaced from his home, which was located 500 feet from Ground Zero. As a consequence, he lost many files. Defendants moved thereafter to dismiss for plaintiffs' failure to appoint an administrator.

On December 17, 2001, plaintiff cross-moved to substitute Othilda Wynter as executor and to submit an amended complaint, now adding a cause of action for wrongful death. In that connection, a physician's affirmation of merit was submitted in which the physician averred that the quadriplegia caused by Clifton Wynter's original fall resulted in his incontinence and the consequential necessity of chronic urinary...