Kelly v Lenox Hill Hosp.
2012 NY Slip Op 31025(U)
April 13, 2012
Supreme Court, New York County
Docket Number: 113413/09
Judge: Alice Schlesinger
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SUPREME COURT OF, THE STATE OF NEW YORK
PRESENT:
, W E
s
m
- NEW YORK
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COUNTY
p A b T?r
Justice
INDEX NO.
/
MOTION DATE
Tho followlng paperr, numbered 1 to
were read on thls motkn to/for
1
Notlce of Motion/ Ordrr to Show Causa - Affldavltn
Annwarlng Affidavit6
- Exhlblta ...
- Exhlblta
Rmplylng Affidsvha
Yes
Cr'bss-Motion:
c No
]
Upon the foregolng papors, tt is ordered that thls I__.
NEW YORK
COUNTY c€ m F ( E
I R o ee E
Dated:
Check one:
APR 1 3 2012
I
ALICE SCHLESINGE?R.CFINAL DISPOSITION
Check if appropriate:
WNON-FINAL DISPOSITION
0 DO NOT POST
0 SUBMIT ORDER/JUDQ.
0 REFERENCE
SE"LEORDER/JUDG.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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SUZANNE KELLY, as Executor of the Estate of
JOHN KELLY, deceased,
Index No. 113413/09
Motion Seq. No. 001
Plaintiff,
-againstLENOX HILL HOSPITAL, GADY HAR-EL, M.D.,
FRED NOBAN, M.D., FARIBORZ NOBANDEGANI, M.D.,
HARRISON MU, M.D., ELISALYNSKEY, M.D.,
CAMERON BUNDEZ, M.D., ROBERT CHUFA, M.D.,
JOHN MILLER, M.D., ROBERT HOLTZMAN, M.D.,
STEVEN A. HERMMERDINGER, M.D., ELMO F.
DESMNDES, M.D., JANE A. LEE, M.D., LUC MORRIS,
M.D., JOHNIJANE DOES, M.D., (1-10) and JOHNlJANE
DOES, R.N. ( I - I O ) , names being fictitious and unknown
but described as physicians and nurses who treated
plaintiff 8 decedent, John Kelly, at Lenox Hill Hospital on
or about March 23,2007 and continuing thereafter,
FILED
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NEWYORK
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Defendants.
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SCHLESINGER, J.:
Before the Court is a cross-motion by several defendant doctors (Harrison Mu, John
Miller, Gady Carrel, and Fariborz Nobandegani) to dismiss this medical malpractice and
wrongful death action based on the plaintiffs repeated failure to provide all counsel with
proper Bills of Particulars. In an affirmation supporting the motion, counsel details the
multiple directives by this Court to counsel for plaintiff to provide individualized Bills of
Particulars or Supplemental Bills, as well as at least eight letters from defense counsel to
plaintiff s counsel outlining deficiencies and asking for more and speclflc information.
What should be noted here, because it is of singular importance, is that the crossmotion also constitutes partial opposition to the motion by Parker Waichman, LLP, counsel
for plaintiff Suzanne Kelly, which had sought permission to withdraw from further
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representation. It is clear to me that the reason for the two years of countless discovery
evasions i that the attorney who took on this case and was the one in charge of it, Andrew
s
Alonso, who flnally appeared in court for the plaintiff on January 11, 2012, after the Court
had issued an Order to that effect because different lawyers ignorant of the case had kept
appearing, completely failed In his professional obligations to everyone.
Mr. Alonso was the individual recommended to Mrs. Kelly to represent her with
regard to the circumstances surrounding her husband’s final illness and death.‘ She saw
no one else. Mr. Alonso accepted this very complicated, tragic case, a case that involved
multiple surgeries for cancer In the sinuses, multiple hospitalizations, and finally the death
of John Kelly in December 2007. The alleged malpractice began in March of that year.
Alonso accepted this case and then, it appears, did virtually no work on it. As stated
earlier, he served one Bill of Particulars regarding at least ten separate defendant doctors
and Lenox Hili Hospital and failed to individualizethe claims against each. Becauseof this,
no progress was made. Alonso rarely came to court, except upon a court order, and then
when he did he promised to provide discovery but did not. Rather, what he did do was to
leave the firm one week later, on January 18, 2012, leaving this case (among others) with
the firm. He also failed to even obtain successive CT scans taken In March 2007, vital to
an understanding of the case.
I have dist;ussed this situation with Raymond Silverman. Again, he brought the
motion after Alonso left the firm, which I granted on February 8,2012. He acknowledged
‘There wems to have been some personal relationship between Mrs. Kelly’s
brother and Mr. Alonso’s brother, according to Aionso’s former colleague Raymond
Silverman. Mr. Silverman is the person who brought the motion to withdraw by Order to
Show Cause on February 1,2012.
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that while he had done a quick review of the file, there was nothing to indicate that Alonso
had ever consulted with an expert. Nor did Silverman. Neither did Alonso and Silverman
ever talk to each other about the case.
Unfortunately, Mrs. Kelly, though noticed, did not come tocourt on February 8, when
the motion to be relieved as counsel was heard. But she did appear on April 11, the
adjourned dated, along with family members. I spoke with her then and ascertained the
complex and tragic facts of the case. She told me that she had been given what she
thought were all the records but had discovered the absence of the March CT scan films,
which she knew existed as she had been shown them while her husband was in the
hospital. Mrs. Kelly wanted to continue the action but was uncertain how to do this. She
did see Alonso once after February 8. But clearly this was ill advised. He Is the last
person she should turn to as he violated his professional obligations to her, to the
defendants, and perhaps to his firm as well.
On the following day April 12, I had a long talk with Mr. Silverman, a partner at
Parker Waichman. He understood that the mishandling of this case by a former colleague
was responsible for a waste of two years and an uncertain status for the action. He offered
to expeditiously obtain the CT scan films and pay for them and get them to Mrs. Kelly. He
should do this. He should also give the plaintiff the names of attorneys with whom he is
acquainted who are qualified to handle complicated cases such as this one.
I am at this time denying the defendants’ cross-motion to dismiss, but without
prejudice to renewal if events warrant It. Everyone connected with this action has been ill
served by Alonso. But Mrs. Kelly, John Kelly’s widow, has been the most ill served. She
trusted her attorney to diligently pursue the matter and he betrayed that trust. At the least,
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she should be given an opportunity, with a complete set of records, to attempt to obtain
new counsel.
Accordingly, it is hereby
ORDERED that the cross-motion to dismiss is denied. All parties or their counsel
are directed to appear in Room 222 for a status conference on Wednesday, June 13,
2012 at 1O:OO a.m.
Dated: April 13, 0
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