Cantor v Goldstone

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Cantor v Goldstone 2012 NY Slip Op 30321(U) February 8, 2012 Supreme Court, New York County Docket Number: 103019/07 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 21912012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: d 4 ,. o s. - NEW YORK COUNTY PART 4 JurprOr Nodm of Motlord Order to Show Cmurs Aniwsrlng Atfidavltr - Exhlbltr / - Affldavh - hhibltr ... 1) 4 Replying Afildavlta I F ¬0 09 2012 Y i E Dated: I # a FINAL DISPOSITION Check If approprlate: a DO NOT POST Check one: 0 SUBMIT ORDER/ JUDG. REFERENCE SETTLE ORDER/ JUDQ. [* 2] Plaintiff, -against- STEPHEN E.OOLDSTONE, M.D., JEFFREY W. HUYElT, N.P., STEPHEN E.GOLDSTONE, M.D. d/b/a LASER SURGERY CARE, LASER SURGERY CARE, CHRISTIAN J. HIRSCH, M.D., JASON R.PENZER, M.D., BRUCE S. GINOOLD, M.D., and MANHATTAN COLORECTALASSOCIATES, P.C., Index No. 1030 19/07 FILED NEW YORK COUNTY CLERK S OFFICE Motion Sequence Numbers 001 and 002 are hereby consolidated for disposition. In Motion Sequence Number 001, Fredric Andrew Cantor, as executor of the estate of named plaintiff James Cantor, deceased, moves, by order to show causc, for an order lifting the automatic stay imposed due to the death of James Cantor and amending the caption to reflect the substitution and a prior discontinuance of the case against one of the defendants, Bruce S.Oingold, M.D.In Motion moves, by order to show cause, for Squencc Number 002, defendant Stephen E. Goldstone, M.D., an order denying Frcdric Andrew Cantor s motion and dismissing the complaint for failing to timely effect substitution. This medical malpractice case involvesuvcntsthat occurred between 2002 and 2006. The action was commenced by the filing of a summons wt notice on M r h 5,2007. An amended ih ac summons wt notice and a verified complaint were filed on or about March 26,2007. Issue was ih joined and the case proceeded to a preliminary conference before the Hon. Eileen Bransten, to whom [* 3] this case was originally assigntd. Due to inventory changes, this case was assigned to me in or about M r h 2008, and the parties appeared for a number ofconfcrenccs before me between May 2008 and ac April 2009. On or about May 23,2008,the parties entered into a stipulation of discontinuancc as to defendant Bruce S.Oingold, M.D. James Cantor was deposed over thrce days in 2008. Friar to commencing defendants' depositions, James Cantor died on April 16,2009, and as a result, the case WBS stayed pending the appointment of a representative of the estate and substitution. C.P.L.R.5 1015. Letters Tcstamentary were issued to Fredric Andrew Cantor on July 20, 2009, Apparently, on or about July 28,2009, counsel for plaintiff circulated a stipulation propsing to substitute Frcdric Andrew Cantor as the plaintiff and amend the caption. While counsel for a number of the other codefendants did sign the stipulation, counsel for Stephen E.Goldstone, M.D., never signed the stipulation. It is unclear why, at this point, counsel for plaintiff never moved to effect the substitution. By M r h 29,201 1, the next time the parties appeared for a court conference ac to asscss the status of this case, no substitution had been effected. Nine months later, counsel for plaintiff filed the motion for substitution, and shortly thereafter, counsel for Dr. Goldstone filed the motion to dismiss for failure to substitute. Pursuant to C.P.L.R.6 1021, substitution of an estate must be made within a reasonable time after the death of the party. The determination of whether a delay in substitution is reasonable is Icft to the discretion of the court, and some factors that the court m a y consider are the length of time between the death of the party and the motion to substitute; whether any party would -2- [* 4] bc subjected to undue prujudicc by the delay; the movant s excuse for the delay; whether there has been a demonstration of merit; and the strong public policy favoring disposal on the marits. Petem v. Citv ofl\l,Y. He& & Yqgps. Cpyp,,48 A.D.3d 329 (2008); -v. . . W e v A.D.3d 716 (2d Dep t 201 I). , 90 In his initial motion papers, plaintiffs counsel fails to show that the case has merit or provide any excuse for the thirty-three (33) month delay between the James Cantor s death and the instant substitution motion. In his motion to dismiss, D .Goldstone points out these deficiencies r and argues that the delay in resuming prosecution of the case has prejudiced his ability to defend the case because it may be dimcult to locate and secure interviews with witnesses. In opposition, plaintiff again fails to offer any excuse for the delay, but asserts that thcre is no prejudice to defendants in the delay. In the opposition papers, plaintiff also provides an affirmation fkom a physician(namc redacted) in which the physician opines, to a rcasonable degree ofmedical curtainty, that Dr. Goldstone and d e f e n d a n t Christian 1. Hirsch, M.D. deviated from accepted standard of care in treating James Cantor, and that such deviations were substantial factors in causing injury to James Cantor. The physician briefly opines that Dr. Hirsch failed to properly treat James Cantor s anal fistulae, necessitating fbrthcr surgery, and that D .Goldstone improperly performed a surgery r to repair James Cantor s rectum, causing a loss of sphincter and a large V-shaped defect and necessitating further surgery. In reply, D .Goldstone maintains that the physician s affirmation is r conclusory and fails to show mcrjt. Though the delay in substitution was lengthy and unexplained, the affirmation of merit is sumdent under thest circumstances and there is little prejudice to dcfandants other than the -3- [* 5] mere passage of time, which alone is not a basis for finding prejudice. A.D.3d 48 1,484 (1 s Dcp t 2007); Wvnter v. Our.t a V i 36 CtL, 3 A.D.3d 376,378 (1 st Dep t 2004). Considering, further, New York s strong preference for a resolution of m t e s on their atr merits, plaintiPs application to substitute the estate is granted, and Dr. Ooldstone s motion to dismiss is denied. Accordingly, it is hereby ORDERED that plaintiffs motion (Motion Sequence Number 001) is granted, and that Fredric Andrew Cantor, as Executor of the Estate of James Cantor, Deccased, be substituted as plaintiff in the abovecntitled action in the place and stead of the plaintiff, James Cantor, without prejudice to any proceedings heretofore had herein; and it is further ORDERED that all papers, pleadings, and proceedings in the aboveentitled action be amended by substituting the name of Frcdric Andrew Cantor, as Executor of the Estate of James Cantor, Deceased, as plaintiff in the place and stead of said decedent, without prejudice to the proceedings heretofore had herein; and it is further ORDERED that counscl for plaintiff shall sene a copy of this order with notice of entry upon the County Clerk (Room 141B) and the Clerk of the Trial Support Ofncc (Room 158), who are directed to amend their records to reflect such change in the caption herein; and it is M e r ORDERED that defendant Stephen E. Goldstone, M.D.9 motion to dismiss (Motion Sequence Number 002) is denied; and it is furthcr [* 6] ORDERED that tho parties shall appear for a slatus conference on March 20,201 2, at 9:30 a.m. ENTER: & JOAN B . BIS, J.S.C. FILED 5 09 2012 NEW YORK COUNTY CLERK'S OFFICE

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