Falcone v Karagiannis

[*1] Falcone v Karagiannis 2009 NY Slip Op 52300(U) [25 Misc 3d 1225(A)] Decided on November 4, 2009 Supreme Court, Nassau County Palmieri, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 4, 2009
Supreme Court, Nassau County

Lisa Falcone, as surviving spouse and administratrix of the goods, chattels and credits which were Steven Falcone, deceased, LISA FALCONE, as mother and natural guardian of infant, plaintiff ERICA FALCONE and LISA FALCONE, individually, Plaintiff,

against

George Karagiannis, M.D., JAMES T. LAINIOTIS, M.D., and THE MEDICAL ASSOCIATES, Defendants.



1773/08



Debra S. Reiser, Esq.

Attorney for Plaintiff

100 Park Avenue, 15th Floor

New York, NY 10017

Vardaro & Helwig, LLP

By: Tammy Trees, Esq.

Attorneys for Defendants

732 Smithtown Bypass

Smithtown, NY 11787

Daniel R. Palmieri, J.

The motion of defendant Lainiotis for summary judgment pursuant to CPLR §§ 3211(a)(5) and 3212 (Statute of Limitations) is denied for the reasons set forth below.

Drs. Lainiotis and Karagiannis practiced medicine together in an entity known as The Medical Associates (TMA). There is nothing in the moving papers that describes the jural existence of TMA. The affidavit of Lainiotis describes the co-defendant as "my partner," copies of prescriptions contain the names of the three defendants without further identification, there is lacking any mention of what TMA is, including filings with governmental departments such as the Secretary of State, employment agreements with professionals, tax status, letterhead or other business records concerning the form in which [*2]the doctors practiced, their relationship to each other and to TMA.

Decedent Steven Falcone was primarily a patient of Doctor Karagiannis from November 2000 until his death on August 13, 2007. Lainiotis states by affidavit that he treated decedent when covering for Karagiannis, the last such occasion occurring on July 31, 2003. The last treatment by Karagiannis was October 24, 2006. This action was commenced on January 29, 2008, which was timely as to Karagiannis but not timely as to the movant, based on his last involvement in July 2003. In this motion, movant seeks dismissal based on the July 2003 date, being the measuring date for purposes of the statue of limitations.

Plaintiff, while not disagreeing with these essential facts, counters that the movant has failed to make a prima facie showing of entitlement to summary judgment, is vicariously liable for the alleged malpractice of Karagiannis, either as a partner or a partner by estoppel, and in any event, that movant has also failed to establish a prima facie entitlement to relief because of the absence of an affidavit from an expert.

Since the sole issue is whether the statute of limitations has passed as to Lainiotis, there is no need for a medical expert and there is no dispute that the action as to co-defendant is timely based on his last treatment of the deceased, the sole issue here is whether the movant is vicariously liable for the acts of the co-defendant or if negligent in his treatment, whether the statute of limitations has expired as to the treatment rendered to him.

It is well settled that summary judgment is a drastic remedy which should not be granted where there is any doubt about the existence of a triable issue of fact. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957); Bhatti v. Roche, 140 AD2d 660 (2d Dept. 1988). It is nevertheless an appropriate tool to weed out meritless claims. Lewis v. Desmond, 187 AD2d 797 (3d Dept. 1992); Gray v. Bankers Trust Co. of Albany, N. A., 82 AD2d 168 (3d Dept. 1981). Even where there are some issues in dispute in the case which have not been resolved, the existence of such issues will not defeat a summary judgment motion if, when the facts are construed in the nonmoving party's favor, the moving party would still be entitled to relief Brooks v. Blue Cross of Northeastern New York, Inc., 190 AD2d 894 (3d Dept.1993).

Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor (CPLR 3212 [b]), which may include deposition transcripts and other proof annexed to an attorney's affirmation. Olan v Farrell Lines, 64 NY2d 1092 (1985). Absent a sufficient showing, the court should deny the motion, irrespective of the strength of the opposing papers. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985).

If a sufficient prima facie showing is made, however, the burden then shifts to the non-moving party. To defeat the motion for summary judgment the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. CPLR 3212 (b); see also GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965 (1985); Zuckerman v. City of New York, 49 NY2d 557 (1980). The non-moving [*3]party must lay bare all of the facts at its disposal regarding the issues raised in the motion. Mgrditchian v. Donato, 141 AD2d 513 (2d Dept. 1988). Conclusory allegations are insufficient (Zuckerman v. City of New York, supra), and the defending party must do more than merely parrot the language of the complaint or bill of particulars. There must be evidentiary proof in support of the allegations. Fleet Credit Corp. v. Harvey Hutter & Co., Inc., 207 AD2d 380 (2d Dept. 1994); Toth v. Carver Street Associates, 191 AD2d 631 (2d Dept. 1993). If a party defends a motion by resort to CPLR 3212(f), that is, the party has a defense sufficient to defeat the motion but that the facts cannot yet be stated, that party must be able to make some showing that such facts do in fact exist; mere hope that discovery may reveal those facts is insufficient. Companion Life Ins. Co. v All State Abstract Co., 35 AD3d 519 (2d Dept. 2006). Nor can mere speculation serve to defeat the motion. Pluhar v Town of Southhampton, 29 AD3d 975 (2d Dept. 2006); Ciccone v Bedford Cent. School Dist., 21 AD3d 437 (2d Dept. 2005).

However, the court must draw all reasonable inferences in favor of the nonmoving party. Nicklas v Tedlen Realty Corp., 305 AD2d 385 (2d Dept. 2003); Rizzo v. Lincoln Diner Corp., 215 AD2d 546 (2d Dept. 1995). The role of the court in deciding a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but simply to determine whether such issues of fact requiring a trial exist. Dyckman v. Barrett, 187 AD2d 553 (2d Dept. 1992); Barr v County of Albany, 50 NY2d 247, 254 (1980); James v. Albank, 307 AD2d 1024 (2d Dept. 2003); Heller v. Hicks Nurseries, Inc., 198 AD2d 330 (2d Dept. 1993).

The Court need not, however, ignore the fact that an allegation is patently false or that an issue sought to be raised is merely feigned. See Village Bank v Wild Oaks Holding, Inc., 196 AD2d 812 (2d Dept. 1993); Barclays Bank of NY v Sokol, 128 AD2d 492 (2d Dept. 1987), such as when the affidavit in opposition clearly contradicts earlier deposition testimony. Central Irrigation Supply v Putnam Country Club Assocs., LLC, 27 AD3d 684 (2d Dept. 2006).

Here, Lainiotis has failed to demonstrate a prima facie showing of entitlement to relief.

On this motion, the movant fails to sufficiently describe the nature of the relationship among the three defendants. If the individual defendants practiced medicine as a general partnership then they are each vicariously responsible for the negligence of their partner. Partnership Law §26(a)2. Keitel v. Kurtz, 54 AD3d 387 (2d Dept. 2008); Fanelli v. Adler, 131 AD2d 631 (2d Dept. 1987). However, with certain exceptions as noted below, if they practiced medicine as employees of a registered limited liability partnership, (LLP) formed pursuant to Partnership Law Article 8-A then the LLP and an active tortfeasor employee of the LLP can be answerable but not a passively acting co-employee. Partnership Law §26(b) and (c).

If TMA is a professional service corporation (PC), organized pursuant to BCL Article 15, shareholders, employees or agents thereof are liable for their own conduct (or those [*4]under their control) but absent other factors not for the conduct of others. BCL §1505. Yaniv v. Taub, 256 AD2d 273 (1st Dept. 1998); Polokoff v. Palmer, 190 AD2d 897 (3d Dept. 1993).

In sum, if TMA is a partnership, the partners are vicariously liable for the conduct of each other. If not a partnership but the factors are present for creating a partnership by estoppel they are similarly liable. If TMA is either an LLP or a PC, the members, shareholders or employees and the entity are liable for their own conduct but the other members, employees or shareholders are not, by reason of their status as such, vicariously liable.

Finally, if an injured person was a patient of the entity rather than a patient of an individual member, shareholder or employee, continuous treatment by the entity may serve as a basis for tolling the statute of limitations as to those doctors who treated the patient during the course of continuous treatment. Scalcione v. Winthrop University Hospital, 53 AD3d 605, 607-8 (2d Dept. 2008); Cardenales v. Queens-Long Island Medical Group, P.C., 18 AD3d 689 (2d Dept. 2005).

It has been held that the continuous treatment doctrine may be applied to a physician who has left a medical group by imputing to him or her the continued treatment provided by subsequently treating physicians in that group. Mule v. Peloro, 60 AD3d 649, 650 (2d Dept. 2009); quoting Solomonik v. Elahi, 282 AD2d 734, 735 (2d Dept. 2001). This rule was established in Watkins v. Fromm, 108 AD2d 233 (2d Dept. 1985), Niehoff, J., which held that a doctor who has departed a group, may be sued if it is established that the plaintiff was considered to be a patient of the group, was treated by the group as such and remained under the care of physicians in the group for the same injury, illness or condition. Subsequent treatment by the remaining members of the group may be imputed to the departed physicians for Statute of Limitations purposes provided the patient was treated as a group patient and the subsequent treatment was for or related to the original condition id at 234.

A person may be deemed a partner by estoppel under certain circumstances. Partnership Law §27. See Milano v. Freed, 64 F.3d 91, 97-98 (2d Circuit 1995); Community Capital Banks v. Fischer & Yanowitz, 47 AD3d 667 (2d Dept. 2008).

Absent from the moving papers is any reference to the factors which are necessary to negate the application of the doctrine of partnership by estoppel, hence, it cannot be initially determined by the Court that the statute is not applicable.

Defendant has failed to set forth the nature of the existence of TMA, the relationship of the individual defendant's to each other and to TMA or to adequately describe the nature of the treatment rendered by the individual defendants. In this regard, the Court notes the failure to submit any guidance as to the content and import of the various pages of the unauthenticated, cryptic, indecipherable handwritten treatment notes attached to the moving papers.

As such, the Court is not able to state that under established summary judgment jurisprudence, that Lainiotis has made a prima facie showing of entitlement to relief as a matter of law and thus, the motion is denied without resort to the adequacy of the opposing [*5]papers. Finally, defendant cannot employ his reply affirmation as a vehicle to cure deficiencies in his initial moving papers. New material contained in a reply for the first time should not be considered Luft v. Luft, 52 AD3d 479 (2d Dept. 2008). The function of reply papers is to address arguments made in opposition to the position taken by the movants and not to permit them to introduce new arguments in support of the motion. Paul v. Cooper, 45 AD3d 1485 (4th Dept. 2007); Allstate Insurance Company v. Dawkins, 52 AD3d 826 (2d Dept. 2008).The statements in the reply which address the foregoing noted issues are made by defendant's attorney who is relying on deposition testimony not submitted with the moving papers and on assumptions as to the organizational nature of TMA which have no support in the record. The reply does not extricate the defendant from his failure to make out a prima facie showing on this motion.

This shall constitute the Decision and Order of this Court.

E N T E R

DATED: November 4, 2009

_____________________________

HON. DANIEL PALMIERI

Acting Supreme Court Justice