Palmer v New York Presbyt.-Columbia

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Palmer v New York Presbyt.-Columbia 2012 NY Slip Op 30787(U) March 28, 2012 Sup Ct, NY County Docket Number: 400609/11 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. [* 1] UED ON 312912012 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY A. li)o;s PRESENT: Index Number : 100460/2011 I 6 PART Judce -- , Y INDM NO. PALMER, IATIA vs. NEW YORK PRESBYTERIANSEQUENCE NUMBER : 001 alKlla MOTION DATE MOTION SLEQ. NO. AMEND SUPPLEMENT PLEADINGS The kllowlnq p p ,nurntnnd 1 to -, a n Notlae of MoblorVOrdrr to Show Cauro Anrwrrlng Affidrvlta - Exhlbltm w e n h a d on thir rnotlon W o r -Amdavtb -Exhlbltm NM8) I Replylng Affldrvlb IWd. IN O W . Upon the fwsgolng plpom, It le ordered that thlr motion Ir c J.S.C. 1. CHECK ONE: .....................................................................a CASE DISPOSED 2. CHECK A8 APPROPRIATE: ...........................MOTION 3. CHECK IF APPROPRIATE ................................................ IS: 0DENIED QRANTED 0SEl7l.E ORDER 0DO NOT POST 0QRANTED IN PART 0OmER 1 SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Plaintiff, -against- NEW YORK PRESBYTERIAN-COLUMBIA UNIVERSITY, DR.ANNETTE: PEREZ-DELBOY, M.D., DR.STEFANIE WETHINGTON, M.D., and DR. CYNTHIA GYAMFI, M.D., Index No. 400609/11 Plaintiff LaTia Palmer, who is proceeding ms, seeks an order granting her adefault judgment against defendant Cynthia Gyamfi, M.D., pursuant to C.P.L.R. 4 321 5; granting her leave to amend her complaint, pursuant to C.P.L.R. 0 3025; and removing a separate action presently pending i Westchcster County Supreme Court and consolidating it with this action, pursuant to n C.P.L.R.5 602. Defendants New York Presbyterian Hospital ( NYPH), and Drs. Annette PerezDelboy, Stefanie Wethington, and Cynthia Gyamfi oppose the motion. Plaintiff commenced this action by filing a summons and complaint on or about M r h 8,201 1. She alleges claims sounding in medical malpractice and lack of informed consent, ac related to a cerclage surgery performed on her by Drs. Perez-Delboy and Wethington. Plaintif alleges that she suffered pain, mental suffering, and urinary incontinence as a result of defendants departures from the standard of care. On or about May 2, 2011, plaintiff filed an,mended complaint, adding Dr. Cynthia Gyamfi as a defendant, alleging that Dr. Gyamfi failed to properly [* 3] ~ treat and monitor her pregnancy on or about November 9, 2010. Additionally, plaintiff added a I wronghl death claim on behalf of her deceased fetus, On or about May 4, 2011, plaintiff commenced a separate action i Westchestqr County Supreme Court, alleging negligence, personal n injury and wrongful death against Shahram b a n , Philip Lawrence Florio, Southern Wastchester OB-GYNAssociates, LLP, and Paul Gleason,under the index number 8821/11. Plaintiffsmotion for a defaultjudgment against Dr. w mi is denied. To obtain a a f default judgment against a defendant for failure to timely answer, a plaintiff must prove proper service, the facts constituting the claim, and the default. C.P.L.R. 8 32 I5(f). Plaintiff has failed to prove any of the above. Moreover, in opposition, Dr. Gyamfi submitted an affidavit of service I indicating that she s a v e d plaintiff with her answer on June 2, 2011,by mail, to the address that plaintiff used on both her amended complaint and this motion. [A] properly executed affidavit of service raises a presumption that a proper mailing occurred, and a m r denial of receipt is not ee enough to rebut this presumption. a v. Pfefkr, 94 N.Y.2d 118,122 (1999). Accordingly, that 1 branch of plaintiffs motion seeking a defaultjudgment against Dr. Gyamfi is denied. Plaintiff further seeks to amend her complaint to add claims for violations of N.Y. Pub. Health L. 6 4160-a and to consolidate the WestChester County action into this New York County action. Plaintiff states that by virtue of commencing the case as a litigant, she w s at a a disadvantage and would now like to correct the errors in order to procure representation. She Plaintiff states that she has legal counsel willing to represent her who has experience litigating medical malpractice claims. Plaintiff appends as an exhibit the affumation of Margaret C. Jasper, Esq., who states that she has initially reviewed plaintiffs cast and believes it is I I -2- [* 4] further states that the proposed amendmentswould cure any procedural defects and are meritorious. Additionally,she states that there is m n m lprejudice to defendantsbecause there is adequate time iia to conduct discovery. Further, plaintiff argues that she has not engaged in dilatory conduct in pursuing her claims. In opposition, defendants argue that plaintiff has failed to comply wt the ih requirements for amending a complaint because she has not submitted a proposed amended complaint. Defendants argue that without the proposed amendments, they are unable to determine if they will be prejudiced or surprised by the amendments. C.P.L.R. Rule 3025(b) states: [a] party may amend his or her pleading, or supplement it by setting forth additional or subsequenttransactions or occurrences, at any time by leave of court or by stipulation of all parties. . . Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading. Leave to amend a pleading should be "freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. Iacido v. Manc m , 49 A.D.3d220,222 (26 Dep t 2008). Here, plaintiff simply states that she desires to make amendments to her complaint, but fails to articulate which specific amendments she wishes to make. Stating that the proposed amendments will ~0nfBin meritorious and new matters of law does not apprise defendants of the substance of meritorious. However, Ms.Jasper is hesitant to represent her unless the complaint can be amended to comply with statutory requirements. -3 - [* 5] I plaintiffs pleading and does not satisfy the requirements that the motion be accompanied by the proposed amendments. Accordingly, that branch of plaintiffs motion seeking to amend her ~ complaint is denied, without prejudice to renewal upon the proper papers. I I Plaintiff further seeks to remove the action presently pending in Westchester C u t ony Supreme Court, under index number 882 1/11, and consolidate it with this action, Plaintiff argues I! that a consolidation of the two cases is proper because she alleges similar injuries and causes of action in both actions. She argues that a venue transfer to New York County is proper because it is where the cause of action arose and the venue in which the action was first filed. She further states I that there will be minimal prejudice to defendants because discovery has yet to commence in this case and is only in the preliminary stages in the Westchaster County action. Additionally, she states that no trial date has been set in either county. I 1 i ~ In opposition, defendants argue that plaintiffs application to consolidate the two I actions is defective. Defendants point out that plaintiff failed to serve the defendants in the Westchester County action, as required by law. Defendants additionally argue that plaintiff failed to apprise them of the pleadings, discovery documents, or motions fiom the WestChester County action, and that without this information, they are unable to determine the stage of the litigation in the Westchester C u t action or whether the two actions have common questions of law and fact. ony Furthermore, defendants state that plaintiff already has a motion to consolidate pending before the Westchester County Supreme Court, and that an inconsistent ruling between the two counties will 1, cause confusion. I I ! I -4- I [* 6] C.P.L.R. Q 602(b) provides for an action pending in the supreme court to be transferred and consolidatedwith an qction pending in another court. However, an action should not be consolidated where it will result in prejudice to a substantial right. The court agrees with defendantsthat plaintiffs failure to serve this motion on the Westchester Countydefendants renders her application defective, The motion must be made on notice to all parties who will be affected. C.P.L.R. § 2103(e); 22 N.Y.C.R.R. 8 202.8(c). Furthermore, because plaintiff failed to attach any pleadings fiom the Westchester County action, the court is unable to consider whether consolidation is proper. Accordingly, it is hereby ORDERED that plaintiffs motion is denied in its entirety, without preju4ict to the renewal of those portions seeking to amend the complaint and to consolidate the action, upon the proper papers and proof of service; and it is m e r ORDERED that the parties shall appear for a preliminary conference on Tuesday, M y 1,2012, at 9:30 a.m., at 60 Centre Street, Room 345, Part 6, New York, New York. a FILED Dated: March Jg ,20 12 II

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