Char-Lee J. v Roberts-Pascall
Annotate this CaseDecided on November 30, 2011
Supreme Court, Kings County
Char-Lee J., an infant by her Mother and Natural Guardian, WENDY W. J. and WENDY W. J., individually, Plaintiffs,
against
Catherine Roberts-Pascall, "JOHN" HENRY (First name fictitious and intended to designate the referring physician whose name appears on the OB Ultrasound Exam dated 12/26/00), MARIE ANNE GLADYS MEMNON, DMITRIY BRONFMAN, AHMED ELSHERYIE, HAROLD BERGMAN, CENTRAL BROOKLYN MEDICAL GROUP, P.C. and THE BROOKLYN HOSPITAL CENTER, Defendants.
46073/01
Plaintiffs were represented by Marc J. Chase, Esq. of Weinstein, Chase, Messinger & Peters, P.C. Defendant Marie Anne Gladys Memnon was represented by James B. Reich, Esq. of Belair & Evans.
Jack M. Battaglia, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on Plaintiffs' motion for an order amending the caption to delete defendants The Brooklyn Hospital Center, Dmitriy Bronfman, and Ahmed Elsheryie; and on the cross-motion of defendant Marie Anne Gladys Memnon for an order, pursuant to CPLR 3025 (b), granting her leave to amend her answer:
-Notice of Motion
Attorney's Affirmation
Exhibit A
-Notice of Cross-Motion
Affirmation
Exhibit A
-Attorney's Affirmation in Opposition to Defendant's Cross-Motion & in Further Support of Plaintiff's [sic] Motion
-Reply Affirmation
-Letter dated October 20, 2011 (Defendant's counsel) with attachments
-Letter dated October 21, 2011 (Plaintiffs' counsel) with attachments [*2]
This medical malpractice action, commenced on November 20, 2001, seeks damages for injury sustained by the infant plaintiff, Char-Lee J., during her delivery on April 19, 2001. The plaintiffs are the infant plaintiff, by her mother and natural guardian, Wendy W. J., and the mother on her own behalf. The defendants are Catherine Roberts-Pascall, "John" Henry, Marie Anne Gladys Memnon, Dmitriy Bronfman, Ahmed Elsheryie, Harold Bergman, Central Brooklyn Medical Group, P.C. and The Brooklyn Hospital Center. Defendant "John" Henry has not appeared in the action.
Plaintiffs move for an order "[l]ifting the stay' and restoring the case to Active' status"; "[a]mending the caption to delete the bankrupt defendants, i.e. [sic] The Brooklyn Hospital Center, Dmitriy Bronfman and Ahmed Elsheryie said causes of action against said defendants having been severed by the United States Bankruptcy Court"; and "[s]etting the matter down for a Preliminary Conference." (Notice of Motion dated April 15, 2011 ["Notice of Motion"].) Defendant Marie Anne Gladys Memnon opposes Plaintiffs' motion, and cross-moves for an order, pursuant to CPLR 3025 (b), granting her leave to "amend her answer to allege additional affirmative defenses." (Notice of Cross-Motion dated May 17, 2011 ["Notice of Cross-Motion"].) Defendants Catherine Roberts-Pascall, Harold Bergman, and Central Brooklyn Medical Group, P.C. have not appeared on either the motion or the cross-motion, although served with both.
Defendants The Brooklyn Hospital Center, Dmitriy Bronfman and Ahmed Elsheryie (the "Brooklyn Hospital Defendants") were not served with either the Plaintiffs' motion or defendant Memnon's cross-motion. Plaintiffs state, "The causes of action against [the Brooklyn Hospital Defendants] have been severed by the United Sates Bankruptcy Court." (Notice of Motion.) Defendant Memnon states, more accurately, "[u]pon information and belief, the causes of action as against [the Brooklyn Hospital Defendants] have been severed by virtue of a settlement by The Brooklyn Hospital Center." (Notice of Cross-Motion.)
Defendant Memnon served an answer that does not allege a cross-claim against any other named defendant. Defendants Roberts-Pascall, Bergman, and Central Brooklyn Medical Group also served an answer that does not allege a cross-claim against any other named defendant. The Brooklyn Hospital Defendants, however, served an answer alleging that, if Plaintiffs should recover against them, "they will be damaged thereby and . . . will be entitled to indemnification from the full amount awarded" from all of the other named defendants except "John" Henry.
On September 30, 2005, The Brooklyn Hospital Center filed a petition in the United States Bankruptcy Court for the Eastern District of New York, triggering the automatic stay in the federal statute (see 11 USC § 362.) For reasons that do not appear on the record of the pending motions, apparently there was little, if any, activity in this action in the approximately [*3]four years between its commencement and the applicable stay. Plaintiffs filed a proof of claim in the bankruptcy proceeding, asserting an unsecured, non-priority claim in the amount of $5 million.
The Bankruptcy Court established a mandatory claims resolution process for certain medical malpractice claims against the Brooklyn Hospital Defendants, including Plaintiffs' claim; and after mediation the parties agreed to a settlement of the claim for $200,000. With a Stipulation and Order Allowing Certain Medical Malpractice Claim as a General Unsecured Claim dated October 17, 2007, the Hon. Carla E. Craig approved the settlement amount as an allowed, general pre-petition non-priority claim, with the treatment provided for such claims under the Hospital's plan of reorganization.
Under the Stipulation and Order, the automatic stay remained in effect, but was modified to allow an application for an infant's compromise order pursuant to CPLR 1207. There is nothing in the Stipulation and Order that purports to sever the Plaintiffs' claim against the Brooklyn Hospital Center, even assuming that a federal bankruptcy court would have the power and authority to do so, and there is nothing about the Brooklyn Hospital Center's cross-claim against the co-defendants.
By ex parte application, Plaintiffs sought and obtained from this Court an order approving the settlement of the infant's claim against the Brooklyn Hospital Defendants for $96,730.74, the amount of the $200,000 settlement that would be paid pursuant to the Hospital's confirmed plan of reorganization. The Infant's Compromise Order dated October 29, 2010 states that the mother's derivative claim "having been waived by said parent . . . is hereby discontinued and dismissed with prejudice only as against" The Brooklyn Hospital Defendants, and that "all claims and causes of action herein against" the Brooklyn Hospital Defendants "are hereby severed from the within action" (emphasis added.) None of the named defendants was given notice of Plaintiffs' application.
CPLR 1207 establishes the procedure for judicial approval of the settlement of an infant's claim, requiring a motion or petition on notice "as directed by the court." But as recently noted by another Court, "[a] tradition developed long ago of seeking approval of infant compromises by submission of ex parte orders . . . without any notice to the defendant(s)." (See Dominguez v Reardon, 14 Misc 3d 882, 883 [Sup Ct, NY County 2007].) Failure to follow the statute as to notice, however, can create problems (see id. at 884-85), particularly where, as here, there are multiple defendants and the proposed order includes provisions for discontinuance (see CPLR 3217) or severance (see CPLR 603.)
No Defendant has moved for a modification of the Infant's Compromise Order dated October 29, 2010, although the Brooklyn Hospital Defendants presumably saw it a year ago, and the other Defendants received a copy with Plaintiffs' papers on this motion. In any event, the severance provision in the Infant's Compromise Order only addresses the Plaintiffs' claims against the Brooklyn Hospital Defendants, and, to date, even those claims have not been [*4]formally discontinued.
Most importantly for present purposes, there is no evidence on this record as to the status of the Brooklyn Hospital Defendants' cross-claim for indemnification, which, on its face, survives the settlement of Plaintiffs' claims against them. (See Glaser v Fortunoff of Westbury Corp., 71 NY2d 643, 646-47 [1988]; see also County of Westchester v Becket Assoc., 102 AD2d 34, 46-49 [2d Dept 1984], aff'd 66 NY2d 642 [1985].) There is nothing that indicates whether the cross-claim is addressed in the bankruptcy plan of reorganization, confirmed on September 12, 2007, and no showing that the cross-claim did not survive the bankruptcy proceeding, or has been discontinued.
Under these circumstances, the failure of Plaintiffs and defendant Memnon to serve the Brooklyn Hospital Defendants with the papers served on their respective motions precludes the determination of the motions at this time. (See CPLR 2103 [e].) Even as to the "lifting" of the automatic stay, there is no evidence that the bankruptcy proceeding is now "closed" for purposes of expiration of the stay (see 11 USC §362 [c] [2] [A].)
Nonetheless, as a matter of judicial administration, the Court is transferring this action to one of the pre-note medical malpractice parts that were established after Plaintiffs commenced this action. There are statutory and rule requirements unique to medical malpractice actions, including as to the preliminary conference. (See CPLR 3012-a, 3406; Uniform Civil Rules for the Supreme Court and the County Court §202.56, 22 NYCRR §202.56.) Since there has been virtually no activity in this case since it was commenced ten years ago, no reason appears why it should not be treated administratively the same as other medical malpractice actions.
Plaintiffs' motion and defendant Memnon's cross-motion are both denied, with leave to renew after transfer to a pre-note medical malpractice part. Plaintiffs shall serve a copy of this Decision and Order upon all Defendants within twenty (20) days hereof.
The clerk is directed to override this action to a pre-note medical malpractice part.
November 30, 2011___________________
Jack M. Battaglia
Justice, Supreme Court
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