Checo v Gonzales

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Checo v Gonzales 2012 NY Slip Op 30733(U) March 22, 2012 Supreme Court, New York County Docket Number: 105571/09 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. NNED ON 312612012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YORK COUNTY socrn h . o h s t PART 6 h8th8 n l ell faA VjflOl<#qI-P &4Jlq Y p INDWNO. MOTION DATE -v- &r;lzq / J d MOTION 8 E a NO. MOTION C A L NO. to 22 Notice of Motlonl Order to Show Csuas Anewsrlng Affldavhr w e n mad on thlo rnotlon&/tor - Affidavits - Exhlblta ,.. - EKhlblU Roplylng Affldavtts v (ld( ! & fl Ute Of ($L ' e PAPEBILMYMBeAE9 .j->/q \5---2s 2 4JA 1 THIS MOTION IS DECIDED WIN ACCORDANCE WITH THE ACCOidPANYIPdG h'iEhlC!RRfi3Uh! DECISION !LED Check one: 0 FINAL DISPOSITION WNON-FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 0 REFERENCE 0 SUBMIT ORDER/ JUDG. 0 SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: IAS PART 6 .................................................................... X VLADIMIR BONILLA CHECO, An Infant, By His Parent and Nalural Guardian, MARICRUZ C HECO, and MARICRUZ CIIECO, Individually, Plaintiffs, -against- Indcx No. 105571/09 Decision and Order MAGUERITA GONZALES, M.D., TIMOTHY J. RAFAEL,, M.D., BETH ISRAEL MEDICAL CENTER, LARISA VOROBYEVA, M.D., XIMENA MATAMALA, M.D., HARLEM HEALTH CENTER and THE NEW Y O N HOSPITAL TRADES COUNCLL AND HOTEL ASSOCIATION OF NEW YORK CITY HEALTH CENTER, INC., Motion Sequence Numbers 002 and 003 are hereby consolidatcd for disposition. In Motion Sequence Nunibcr 002, dcfcndants Marguerita Gonzales, M.D. s M a Maguerita Gonzales, M.D., Timothy J. Rafael, M.D., Bcth Israel Medical Center ( BLMC ), Larisa Vorobyeva, M.D., and Xiiiiciia Matamala, M.D. (collectively the MS-2 Dcfendants ) move, by order to show cause, for an order vacating thc note orissue pursuant to 22 N.Y.C.R.R.tj 202.21 (c), and coiiipellingplaintilfs to provide discovery. In Motion Sequcncc Number 003, defendant New York Hotel Trades Council &Hotel Association orNew York City, Lnc., Health Ccntcr Inc., s/h/a Harlem Health Center and The New York Hole1 Trades Council and Hotel Associatioii of New York City Health Centcr, Inc. ( NYHTC ) also riiovcs, by ol-der to show cause, for an ordcr vacating the note of issue and coiiipclliiig plaintiffs to provide outstanding and/or additional discovery, including scparate bills of [* 3] particulars as to cach defendant and particularized claims of vicarious liability. NYHTC also sccks an order vacating all or certain portions of plaintiffs third sct of supplemental bills of particulars. I n this case sounding in medical malpractice, plaintiffs allege that infant-plaintiff Vladiniir Bonilla Checo suffered injuries, including shoulder dystocia and Erb s Palsy, as a result ofinismanagement ofhis iiiolher Mancruz Checo s prenatal care by Dr. Matamala, and his labor and dclivery, on February 4,2007, by Drs. Gonzales, Vorobyeva, and Rafael. Ms. Checo also claims injuries, iiicluding fecal incontincncc, rectal and anal darnage, and vaginal tears, as a result of similarly allegcd ncgligence. Plaintiffs filed a summons and verificd complaint on or about April 21, 2009. The verificd complaint contains cight (8) causes of action, including medical malpractice on bchalf of infant-plaintiff and Ms. Checo; loss of serviccs of the inhnt-plaintiff on behalf of Ms. Checo; lack of informed conscnt on behalf of infant-plaintiff and Ms. Checo; and negligent hiring, retention, and supervision against NY HTC and RIMC. On or about September 1,2009, in response to defcndants demands, plaintiffs served vcrified bills of particulars. The allegations contained in the verified bills of particulars morc or less amplif-led the injuries alleged in the verified complaint. The injuries allcged as to infant-plaintiff included respiratory trauma, asphyxiation, hypotherniia, shoulder dystocia, fractured humcrus, temporary paralysis, Erb s Palsy, confinement to hospital and home, cniotional distrcss, mental anguish, inability to perform rcgular daily activities, and loss of NYIITC inadvertently rcfcrs to plaintiffs anicnded veri tied bills of parliculars dated December 23, 201 1 as their third sct of supplemental bills of particulars. -2- [* 4] cnjoyinent of life. Thc injuries alleged as to Ms. Chcco included vaginal and perineal tcars, anorexia, anemia, fecal incontincncc, rcctal and anal damage, infection, mental and physical suffering, loss of cnjoynent of life, depression, and anxiety. On November IO, 2009, the parties appcarcd for a preliminary conferencc, which resulted in an order directing, inter alia, plaintiffs to provide separate bills of particulars for each named defendant, specifying the specific acts of negligence against cach defendant; to advise dcfcndants whether infant-plaintifrs father would bc produced for deposition voluntarily or to providc his last known addrcss; and to provide supplciiiciital bills of particulars as to special damagcs. Additionally, plaintiffs stated that they did not allege surgical negligcnce against N Y HTC. On or about December 1, 2009, plaintiffs served suppleiiiental verified bills of particulars with respect to special damages and confmemcnt to home and bed. On March 2,201 0, the parties appeared for a compliance conferencc, and between April 6,201 0 and January 24,2012, they appcared for nine (9) status conferences. Bclween June 17, 2010 aiid October 24, 201 1, thc parties conductcd the depositions of Ms. Checo, Dr. Gonzales, Dr. Vorobycva, Dr. Malamala, and Dr. Rafacl. In the status conference order datcd November 1, 201 I , plaintiffs reserved the right to depose NYHTC beforc the filing of the note of issue. Howcver, plaintiffs failed lo do so. On or about December 23, 201 I , plaintiffs served amended verified bills of parliculars ( Amended BPs ). Thc Amended BPs differ from thc original bills of particulars in 2 Plaintiffs served anicndcd supplemental verified bills of particulars upon NYHTC on or about March 8, 2010. -3 - [* 5] various respects, including alleging surgical negligence against NYHTC and irnpropcr delivery against Dr. Mataniala; expanding the datcs of negligcnce as to NYHTC and Dr. Matamald and adding injuries of dcvelopmental and speech delays on behalf of infant-plaintiff and injurics o r inability to pcrrom daily activities and care for family mcinbers on behalf of Ms. Checo. On Deccinber 28, 201 1 , plaintiffs iiled the note of issue and certificate ofrcadiness, certifying that all discovery known to be necessary was complete and that there wcre no outstanding requests for discovery, except for additional testing schedulcd for Ms. Checo and thc exchange of written reports thereof. Both the MS-2 Defendants and NYIITC seek to vacate the note ofissuc on various grounds. First, NYI-ITC argues that discovery remains outstanding. NYI-ITC states that plaintiffs failed to rcspond to its Novenibcr 15, 2010 demand seeking photographs and other discovery to which Ms. Checo testitied; failed to state whethcr they will producc infant-plaintifrs father for a lion-party deposition or provide his last known address; failcd to respond l o NYIITC s demand for rclcvant documents from social tneclia sitcs; and failcd to comply with court orders dated November I , 201 1 and April 4,201 1, directing plaintiffs to respond to NYHTC s November 15,2010 demand and noticc to produce. In opposition, plaintiffs argue that discovery was coniplcte at the time they filed the note of issue, and that thcy respondcd lo NYIITC s November 15,2010 dcinand on September 15, 3 In the original bills of particulars, the dates of alleged ncgligence ranged from June 22, 2006 to Fcbruary 4,2007 as against NYHTC, and from June 22,2006 to Fcbruary 12,2007 as against Dr. Mataniala. In the Arnendcd BPs, the dates for both Dr. Matamala and NYHTC range from December 14, 2006 to August 3, 2007. -4- [* 6] 201 1 ;providcd authorizations for fifteen (1 5) medicalproviders; advised that Ms. Chcco is in search of thc photographs requested; stated that infant-plaintiff s father s last known address is the same as infant s; and attachcd Medicaid insurance authorizations. In reply, NYHTC states that plaintiffs Scptember 15,20 1 1 letter does not fully respond to its November 15th demand, because (i) plaintiffs did not producc the photographs testificd to by plaintiff-mother, because the lctter merely stated that she was searching for them, and (ii) plaintiffs have still not advised whether they will produce infantplaintiff s father for a non-party deposition. Sccond, thc MS-2 Defendants and NYHTC argue that the Amended BPs are defective. NYHTC argues that the court should vacatc the Arnendcd BPs on thc grounds that thcy were servcd without leave of court. Moreover, both the MS-2 Defendants and NYHTC argue that thc Amended BPs improperly allege new injuries. Specifically, the MS-2 Defendants argue that the new injuries of dcvelopmcntal and specch delays alleged in the Amendcd BPs contradict Ms. Checo s testimony that infant-plaintiff did not have speech delays. Thcy state that these in-juries come as a siirprisc, because they were not mentioned in the verified bills of particulars dated August 4,2000, do no1 exist in infant-plaintiff s mcdical records, and did not exist during an examination of infant-plaintiff by Dr. Regina De Carlo, a neurologist. NYHTC states that it is also surprised by plaintiffs allegation of surgical negligcnce, because it contradicts the preliminary conference order, in which plaintiffs stated that they would not allegc this claim against NYHTC. In light of the Amended RPs, both the MS-2 Defciidants and NYHTC seek further discovery, including an cxarnination of infant-plaintifl and a deposition of Ms. Checo. -5- [* 7] In opposition, plaintiffs arguc that the Amended BPs were proper and served prior to thc filing ofthe note ofissue, as a matter ofright. Plainliffs state that the new injurics and claims coiiic from the depositions, and that there are no surprises or prejudice to dcfendants. Specifically, they assert that thc extension of dates of negligence rcsults from Ms. Checo s deposition testimony that she continued to treat with Dr. Matamala through August 3,2007, during which shc expericnced continuing injurics relatcd to fecal incontinence. Plaintiffs contend that Ms. Checo s inability to provide and care for her son was a continuing and foreseeable injury. Additionally, plaintiffs argue that the MS-2 Dcfendants claim that there is no evidence of devcloprnental and speech delays is without merit, becausc Ms. Checo testified that infant-plaintiffhad spcech problems and was unable to crawl bccause of his inability to use his weak, lcft ami. Plaintiffs maintain that Ms. Chcco s testimony that infant-plaintiff had no medically-rclated speech problems is not conclusive, as this issuc will be ultitnately decided by the jury. Plaintiffs also state that defcndants are alrcady in possession of the discovery they scek, that defendants were on notice of these claims and injurics far in advance of the service of the Amended BPs, and that their failure to request discovcry prior to the filing o f the note of issuc results in a waiver of that discovery. In rcply, dcfendants assert that they did not pursue discovery with thcse new injurics and claims in mind, and that thcy could not conduct further discovery because thcy received thc Amended BPs aftcr the note of issue was filed. As to NYHTC s argument that plaintiffs Amended BPs should be vacated due to their failure to obtain leave of court, under C.P.L.K. Rule 3042(b), a party may amend the bill of particulars oncc as of course prior to the filing of the note of issue. Plaintiffs servcd upon all -6- [* 8] dcfcndants verified bills of particulars on or about August 14,2009; supplemental verificd bills of particulars as to special damagcs and disabilities on or about December 1,2009; and the Amended BPs on or about Dcccmber 23,201 1. As such, plaintiffs propcrly amended their bills of particulars for the Lrst time prior to llie filing of the note ofissue. C.P.L.R. Rule 3042(b). In addition, plaintiffs were entitled t o assert ncw injuries and claims in the Amended BPs. Martinovics v. N.Y. City Heallh & Hosps. Cow., 285 A.D.2d 532, 535 (2d Dep t 2001). Accordingly, that branch of NYIITC s motion secking to vacate the Amended BPs, in whole or in part, is dcnicd. As to thc vacatur of the notc of issue, the Uniform Rules for Trial Courts state, in pcrtinent part, that a p:irty may inow to vacate the note of issue, upon affidavit showing in what respccts the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate ofreadiness is incorrecl[.] 22 N.Y.C.R.R. 9 202.21(c). A statement in thc certificate of rcadiness that erroneously asserts that discovery known to be necessary has been completed is a basis for vacating the note of issue. Savino v. Lewittes, 160 A.D.2d 176, 177 (1st Dep t 1990). The moving party need only demonstrate that the case is not ready for trial. Audiovox Corp. v. Benyamini, 265 A.D.2d 135, 139 (2d Dep t 2000). Here, plaintiffs inisstatcd in their notc or issue that all discovery known to be neccssary was complete. Plaintiffs have yet to comply in full with discovcry demands set forlh in the court orders dated January 11, 201 1 and April 5, 201 I . Although plaintiffs provided infantplaintiff s fathcr s last known address, they have yet to produce the photographs to which Ms. Checo testificd. Furthermore, becausc thc Amended BPs were servcd nearly concurrently with thc note of issue, defcndants did not have adequatc time to seek discoveryrelated to the ncw claims and injuries -7- [* 9] in the Amcnded RPs. The MS-2 Defendants relied on Ms. Checo s reprcscntation that infant- plaintiff did not have speech problems, and as such, conducted their discovery with this understanding. Thus, their surprise to new claims alleging developmental and speech delays is rcasonable. Likewise, NYHTC conducted its discovery based on plaintiffs representation that surgical negligence would not be alleged against it, and its surprise as to this ncw claim is also rcasonable. Morcover, the case to which plaintiffs cite, Schroeder v. IESINY Corp., 24 A.D.3d 180 (1 st Dcp t2005), is distinguishable from thc case at bar. Herc, plaintiffs did not disclose the new in-juricsand allegations until the time oftheir filing of the note of issue, and defendants did not have amplc time lo request additional discovery. Defendants have dcnionstrated the manncr in which this case is not ready for trial, and accordingly, their request for an order vacating thc note of issue is ganled. As to defcndants request for further discovcry, C.P.L.R. (j 3101(a) requires the full disclosure of all matters material and nccessary in thc prosecution of an action. After commencement of an action in which the mental or physical condition , , . of a party . . . is in controvcrsy, any party may serve noticc on another party to submit to a physical, mental or blood examination[.] C.P.L.R. Q 3 12 I(a). See Kournp v. Smith, 25 N.Y.2d 287 ( I 969). Here, plainliffinfant underwent a neurological evaluation on February 4,201 1 with Dr. DeCarlo, whose report stated briefly that thc child was wcll-developed, and that he was able to coniplctc full sentences. However, thc portion of the report regarding his specch and devcloprnent, which plaintiffs contend is sufficient, is not nearly as robust as the portion of the rcport regarding his ability to use his lcft ann, which was the primary alleged injury at that timc. Becausc plaintiffs now put into issue infant-plaintiff s devcloprnental and speech abilitics, defendants are entitled to a further examination -8- [* 10] of him. Additionally, Ms. Checo asserts new injurics and allegations not previously pled, which wcre no1 fully explored at her deposition. Defendants have dcnionstrated that such additional discovery is necessary. Accordingly, defendants are entitlcd to a furlher medical examination of infant-plaintiff and a further deposition of Ms. Checo, liiiiiled to the new injuries and theorics of liability alleged in the Amcnded BPs. Both the MS-2 Defendants and NYHTC scck an order cornpelling plaintiffs to scrvc further bills of particulars specific as to each defendant. Spccifically, the MS-2 Defendants argue that alleging negligent delivery and labor against Dr. Matamala is improper, because Dr. Matamala was not present at the labor and delivery on Fcbruary 4,2007. NYHTC argucs that plaintiffs claim that N Y HTC s agents, servants, and/or employccs coniinitted acts of negligcncc is a boilerplate rcsponse that does nothing to limit surprise or ainpli fy plaintiffs claims, and is impennissively vague. In opposition, plaintiffs state that Dr. Matanlala s prenatal care of Ms. Chcco was so poor thal Dr, Matamala should be held liable for the alleged negligencc that occurred during the dclivcry, evcn though she was not present for the delivery. As to N Y HTC s argunicnt that the Amended BP fails to identify for whoiii NY HTC is vicariously liable, plaintiffs state that NY HTC is vicariously liablc for Dr. Matamala. In reply, the MS-2 Defendants arguc that plaintiffs can only claim negligencc as to the acts pcrfonned by Dr. Matamala, and that Dr. Mataiiiala is entitled to a bill of particulars that specifics the acts or omissions attributable to her. They arguc that plaintiffs acluiowledge that Dr. Matamala was not present for thc delivery; thereforc, such claims alleging negligence of iiifanl-plaintifi s dclivery are not spccific as against hcr. NYHTC states that no surgcries are perfornicd at its facilities, and that plaintiffs cannot allege surgical negligence against it. -9- [* 11] Thc purposc of thc bill of particulars is to amplify the plcadiiigs, limit thc proof and prevent surprisc at trial. Twiddy v. Standard Mar. Transp. Scrvs., 162 A.D.2d 264,265 ( I st Dcp t 1990), A response to a demand for a bill must clearly detail the specific acts of negligence attributable to each dcfcndant. Batson v. La Guardia IIosp., 194 A.D.2d 705,706 (2d Dcp t 1993). The trial court has broad discretion to determine compliance with discovcry dcinands. Graves v. County of Albany, 278 A.D.2d 578 (3d Dcp t 2000). I-Icrc,plaintiffs wcrc dircctcd in the preliminary conference order to produce bills of particulars specitic to each defcndant. The court agrccs with dcfcndants that they inay be held liable only for thc acts attributable to each defendant. Therefore, plaintiffs allegations that Dr. Mataniala is responsible for the allcgcd negligcnt act ofother physicians is improper. Similarly, the courts have found that the languagc agents, scrvants, and/or employees is improper, as it is vague and overbroad, and does not apprisc the defendant spccifically ¬orwhom it is allegedly vicariously liable. Gannotta v. Long Island College Hosp., 92 A.D.2d 930 (2d Dep t 1983); Batson v. La Guardia Hosp., 194 A.D.2d 705, 706 (2d Dep t 1993). Therefore, plaintiffs failurc to statc for whoiii specifically NYHTU is vicariously liablc rcnders their bills of particulars inadequate as to NYHTC. Accordingly, plaintiffs arc directcd to serve further bi Ils ofparticulars, specifying for whom NYHTC is vicariously liable and scttiiig forth allegations specific to each defcndant. N Y HTC also seeks an order coinpelling plaintiffs to particularize its special damages claims, as was directed in the prelirninnry conference order. C.P.LR. Rule 3043(a)(9) requires special daniagcs to bc particularized. Plaintiff bears the burden of calculating special damages claiiiied by them. Bass v. Kansas, 198 A.D.2d 693, 694 (3d Dcp t 1993). Ordinarily, a plaintiff -10- [* 12] <& may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court a1 any time, but not less than thirty days prior to trial. C.P.L.K. Rulc 3043(bj. Here, plaintiffs scrved supplemental bills ofparticulars on or about March 8,2010. However, plaintiffs rcsponse stating that special dainages are not being claimed until the dale oftrial, except [hat] plaintiffs will claim past damages to the rid1 extent of any amounts claimed by lien holders to be due and owing and/or to the full extent of any amounts attached by lien holders claimed to [be] due and owing does not satisfy the requiremcnts of Rule 3043. Plaintiffs iiiust, at the very least, itemize and calculate the amount of special damages they claim up until now. Plaintiffs may further supplement their bills of particulars with respcct lo special damages up until thirty (30) days prior to the date of trial. Accordingly, plaintiffs are directed to serve further supplemental bills of particulars in coinpliance with thc C.P.L.R. Accordingly, it is hereby ORDERED that the portion of defendants motions seeking to strike the note of issue is grantcd and the note of issue is hereby vacated and the case is stricken from the trial calendar; and it is firrthcr ORDERED that the portion of defendants motion seeking additional discovery is granted and, subject to the limitations contained herein, all further discovery in this matter shall be completed within sixty (60)days froin the date of service ofa copy of this order with notice of entry; and it is furthcr - I 1- [* 13] ORDERED that, within fifteen (I 5 ) days From the entry of this order, rnovants shall serve a copy of this order wt notice of entry on all parties and upon the Clerk of the Trial Support ih Office (Room 3 1 9 , who is hereby directed to strike the case f o the t i l calendar and make all rm ra required notations thereof in the records of the courts; and it is further ORDERED that, within fifteen (15) days f o completion of discovery rm 8s hereinabove directed, plaintiffs shall cause the action to be placed upon the trial calendar by the filing of a new note of issue and statement of readiness and payment of the fee therefor; and it is further ORDERED that plaintiffs shall serve M e r bills of particulars upon defendants, specifying the alleged acts or omissions attributable to each defendant, for whom each institutional defendant is vicariously liable, and special damages claim, within fifteen days (1 5) of the date of this order; and it is further ORDERED that all other relief requested is denied; and it is further ORDERED that the parties shall appear for a status conference on April 24,2012, in Room 345, Part 6, at 9:30 a.m. ENTER: -12-

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