Levy v New York & Presbyt. Hosp.
Annotate this CaseDecided on February 9, 2006
Supreme Court, New York County
Albert Kent Levy, an Incapacitated Person, by Gloria Valdes-Lieske, His Guardian, Plaintiff,
against
New York and Presbyterian Hosp. et al., Defendants.
102667/05
Eileen Bransten, J.
Motion sequence numbers 01, 02 and 03 are hereby consolidated for disposition.
In motion sequence number 01, pursuant to CPLR 3012(b), defendant The New York and Presbyterian Hospital, s/h/a New York and Presbyterian Hospital ("Hospital") moves and defendant New York City Health and Hospitals Corporation ("HHC") cross-moves for an Order dismissing this action for failure to timely serve a complaint. Plaintiff Albert Kent Levy, by his guardian Gloria Valdes-Lieske, opposes the motions.
In motion sequence number 02, HHC seeks dismissal of the action pursuant to CPLR 3211(a)(5) on statute of limitations grounds. Plaintiff opposes the motion.
In motion sequence number 03, the Hospital seeks dismissal of the action pursuant to CPLR 3211(a)(5) on statute of limitations grounds. There is no opposition to that motion.
Background
In 1998, plaintiff commenced an action against HHC and the Hospital by filing a summons with notice (Index Number 108799/98). The case, hereinafter referred to as "Levy-1," was assigned to Justice Stanley Sklar.
Both defendants served notices of appearance and demands for a complaint. Months after a complaint was demanded, defendants sought dismissal of the action pursuant to CPLR 3012(b) for failure to timely serve a complaint. Ultimately, plaintiff cross-moved to compel defendants to accept a complaint. On July 27, 1999, Justice Sklar granted dismissal of Levy-1, explaining that:
"Plaintiff's counsel has made prodigious efforts to secure an expert to enable him to issue a certificate of merit and to secure an affidavit of merit, which is required to excuse his default in failing to timely serve complaints on the defendants, but was unsuccessful. At oral argument plaintiff's counsel made it clear that he saw at least, and probably more than, four physicians for such purpose, two of whom had a specialization in a field in issue in this case, but was not able to secure an affidavit of merit.* * *[*2]"Accordingly I am constrained to grant the motion and cross motion to dismiss and deny plaintiff's motion to compel acceptance of the complaint."
Dizon Affirmation in Support ("Hosp. Supp."), Ex. G.
More than five years later, plaintiff obtained new counsel and moved for an Order pursuant to CPLR 2221(e) granting leave to renew the Hospital's motion and HHC's cross-motion to dismiss the complaint. Plaintiff argued that renewal was appropriate because of newly discovered evidence, alleged law office failure by prior counsel and in the interests of justice. Hosp. Supp., Ex. K, at 3. In support of the motion to renew, plaintiff relied on an affidavit of merit from Lee Coleman, M.D. sworn to on May 11, 2005, see, O'Neill Reply Affirmation ("Hosp. Reply"), Ex. A, and a "Declaration" from Dr. Coleman dated August 13, 2003.
On June 14, 2005almost six years after deciding the underlying motionsJustice Sklar denied renewal. Hosp. Supp., Ex. K. Justice Sklar concluded, among other things, that the:
"Declaration is inadequate because it does not distinguish between the defendants and does not state that anything a defendant did was a departure from good and accepted medical practice. At most, generously read, the Declaration asserts that the use of psychotropic medications was a proximate cause of Albert Levy's unfortunate condition. Since the Coleman Declaration doesn't contain new facts and since it is inadequate, it does not justify renewal.* * *"The affidavit of merit also included, dated May 11, 2005, appears to be a recap of his Declaration' * * *."
Hosp. Supp., Ex. K, at 4.
Justice Sklar further determined that the submissions were "conclusory" because "they [did] not set forth, for example, which drug was allegedly administered by whom, that such administration (in whatever dosage it was administered-or in any dosage) to a reasonable degree of medical certainty was a departure from good and accepted practice (much less good and accepted practice in New York State) and that said departure by a specified defendant was a cause of injury to plaintiff." Id., at 5.
On February 24, 2005, a new attorney, Mayne Miller, filed a new summons with notice against the very same defendants, and commenced this action. The Hospital and HHC were served with the summons with notice in June 2005 and promptly served notices of appearance and demands for a complaint. Months passed and no complaint was ever served. Finally, in September 2005, the Hospital made this motion to dismiss for failure to serve a complaint. HHC cross-moves for the same relief.
The motions initially reached this Court without any opposition. Mr. Miller explains that because "of the press of other litigation and the burden of attempting to negotiate a renewal lease with the landlord of the building wherein my office is located, I was not able to complete work on the Complaint before the return date of [the Hospital's] motion; and I went to the calendar call * * * to request a brief adjournment. Unfortunately, * * * was briefly delayed * * * and the short initial calendar call had been completed by the time [he] arrived. * * * [After assuming that the matter had [*3]been adjourned one week,] [he] was astounded to learn that the motion had been submitted, apparently without opposition, and assigned to * * * the Hon. Eileen Bransten, Justice of the Supreme Court." Affirmation in Opposition ("Opp"), at ¶¶ 7-8.
Before oral argument on the motions, Mr. Miller managed to put in opposition papers, which included a Complaint. Opp., Ex. B. In the complaint, plaintiff alleges that the Hospital and HHC deviated from accepted medical practice in administering psychotropic drugs to Albert Kent Levy.
In opposition to the dismissal motions, in papers dated October 12, 2005 (months after Justice Sklar denied renewal in Levy-1) plaintiff asserts that:
"Plaintiff has now obtained a series of affirmations by Lee Coleman, M.D., which together present an adequate statement of the merit of the case, both with respect to the departures from accepted practice engaged in by the Defendants and with respect to the proximate nature of the causal relationship between such departures and Plaintiff's permanent debilitation and brain damage.* * *"Of course, if Plaintiff were still unable to obtain adequate affirmations of merit, the within action could be dismissed on the same ground as the prior action was dismissed unless additional time would be allowed in order to obtain adequate affirmations. The combination of the affidavits from Dr. Coleman, however, provides an adequate affirmation of merits to support the within action. There is no need to address why such an affirmation of merit was not presented in the prior action."
Opp., at ¶¶ 12, 14 (emphasis added).
Astonishingly, the "series of affirmations by Lee Coleman, M.D." are the exact same submissions that were before Justice Sklar on the renewal motiona declaration dated August 13, 2003 and an affidavit of merit dated May 11, 2005. Opp., Ex. C.
On reply, both the Hospital and HHC point out that the materials previously deemed "conclusory" by Justice Sklar cannot be credited now. The Court agrees.
Analysis
CPLR 3012(b) provides that once a defendant has served a written demand for a complaint, service "of the complaint shall be made within twenty days." The statute further sets forth that the "court upon motion may dismiss the action if service of the complaint" is not made in accordance with the provision. It is well settled, moreover, that a party opposing a CPLR 3012(b) motion to dismiss based upon law office failure "is obligated to submit an affidavit of merit." Kel Management Corp. v. Rogers & Wells, 64 NY2d 904, 905 (1985); see also, Dick v. Doral Greens Limited Partnership, 289 AD2d 74, 76 (1st Dept. 2001), lv. denied 98 NY2d 607 (2002); Manhattan King David Restaurant, Inc. v. Nathanson, 269 AD2d 297, 297 (1st Dept. 2000).
At issue here is whether the "combination of the affidavits" by Dr. Coleman justify permitting late service of the complaint. Specifically, the Court must analyze whether they establish that the action has merit. Justice Sklar, however, already reviewed the identical "combination of [*4]affidavits" and determined that they were conclusory and deficient.
This Court will not disturb those findings. Indeed, plaintiff is estopped from arguing that the same materials that have already been thoroughly examined and deemed insufficient to establish the merit of the action by one Justice of this Court should satisfy another Justice. McKinney v. City of New York, 78 AD2d 884, 886 (2d Dept. 1980), presented a similar issue. There, a Federal court dismissed a complaint purely based on pleading deficiencies. Plaintiff next commenced an action in Supreme Court, Kings County by serving a "virtually identical" complaint. The Appellate Division held that the second action was precluded. The Court explained that although ordinarily an action is only precluded once there has been a final adjudication "a dismissal not intended to foreclose the merits does have limited [preclusive] effectit is deemed an adjudication of the ground upon which the dismissal is predicated. Therefore, a dismissal at the pleading stage [is preclusive] where the action is sought to be recommenced on the same pleading." Id.; see also, Siegel, NY Prac § 462, at 777 (4th ed.).
Similarly, here, although the "dismissal of an action for non-service of a complaint under CPLR 3012(b) is obviously not on the merits" and ordinarily cannot "be met with the defense of res judicata," Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3012:13, under these circumstances plaintiff cannot be permitted to establish that the action has merita prerequisite to avoiding dismissal and obtaining permission to serve a late complaintby relying on an affidavit and declaration that Supreme Court has already deemed "inadequate" and "conclusory." In fact, plaintiff acknowledges that upon inability "to obtain adequate affirmations of merit, the within action could be dismissed on the same ground as the prior action was dismissed."
The failure to properly prosecute this action is astounding. After Levy-1was dismissed for failure to timely serve a complaint and renewal was denied, in part, because plaintiff failed to establish the merits of the claims, new counsel has inexcusably taken this case down the exact same course. First, counsel failed to timely serve a complaint. Had the complaint been timely served, this Court would not be required to carefully scrutinize its merits at this early stage. Next, after months passed and only in response to defendants' motions to dismiss, plaintiff's counsel finally prepared a proposed complaint but in an effort to establish its merits relies solely on submissions determined to be inadequate and conclusory.
Because plaintiff failed to submit "an affidavit of merit containing evidentiary facts sufficient to establish a prima facie case," the complaint must be dismissed in its entirety. See, Kel Management Corp. v. Rogers & Wells, 64 NY2d, at 905; contrast, Rose v. Our Lade of Mercy Med. Ctr., 268 AD2d 225, 226 (1st Dept. 2000) (plaintiff's expert affidavit, for the most part, deemed sufficient because it described in detail the series of operations performed by particular defendants and their allegedly improper conduct).
The dismissal for failure to timely serve the complaint renders the motions to dismiss on statute of limitations grounds moot.
Accordingly, it is
ORDERED that defendants' motion and cross-motion to dismiss the action pursuant to CPLR 3012(b) are granted and the complaint is dismissed; it is further
ORDERED that defendants' motions to dismiss on statute of limitations grounds are denied as moot; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly. [*5]
This constitutes the Decision and Order of the court.
Dated: New York, New YorkENTER:
February 9, 2006
__________________
Eileen Bransten, JSC
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