Freydel v New York Hosp.

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Freydel v New York Hosp. 2012 NY Slip Op 32632(U) October 11, 2012 Supreme Court, New York County Docket Number: 121414/2000 Judge: Debra A. James 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. SCANNEDON I011712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 59 PRESENT: DEBRA A. JAMES Justice SEYMON FREYDEL, a s Administrator of the Estate of DINA FREYDEL, ROMELIA FREYDEL, and SEYMON FREYDEL, individually, Index No.: 121414/2000 Motion Date: 05/11/2012 Motion Seq. No.: Plaintiffs, Motion Cal. No.: -vNEW YORK HOSPITAL a/k/a NEW YORK WEILL CORNELL MEDICAL CENTER, * ' F * 4 .n" Defendant. The following papers, numbered Ito 2 were read on this motiqZ3,tssubstitute plaintiff Seymon Freydel as Administrator of the Estate of Dina Freydel as plaintiff, dismiss Lyudmila's cause of action PAPERS NUMBERED Notice of Motion/Order to Show Cause -Affidavits -Exhibits 1 Notice of Cross Motion/Answering Affidavits - Exhibits 2 Replying Affidavits - Exhibits Cross-Motion: * 0 Yes No Upon the foregoing papers, it i s Defendant New York Hospital a / k / a New York Weill Cornell Medical Center (NYH) moves for dismissal on the grounds of laches and plaintiffs' failure to timely substitute a representative of decedent Dina Freydel's estate. Alternatively, NYH moves to enforce a purported settlement and to dismiss the action. Alternatively, NYH moves to strike the note of issue and set t h e action down f o r a preliminary conference so that the parties may Check One: 0 FINAL DISPOSITION Check if appropriate: DO NOT POST NON-FINAL DISPOSITION REFERENCE [* 2] commence discovery. Plaintiff Seymon Freydel is the son of the decedent Dina Freydel (Mrs. Freydel) and the administrator of her estate. Plaintiff Romelia Freydel (Romelia) is Seymon Freydel s daughter. Mrs. Freydel was an immigrant from the former Soviet Union with limited English skills. Her primary language was Russian and she was deaf and speech impaired, as are her children and grandchildren, except for granddaughter Rornelia. When she was 78 years o l d , Mrs. Freydel suffered a heart attack and was taken to NYH on October 17, 1997. She and her family repeatedly requested Russian sign language interpretation services. In the meantime, Mrs. Freydel communicated by lip reading the speech of her Russian speaking doctor and through Romelia, who was 12 years old at the time. On October 24, 1997, Mrs. Freydel moved by order to show cause in the United States District Court, Southern District of New York, for a preliminary injunction requiring that NYH provide a Russian sign language interpreter. Several hours afterward, NYH began providing the requested services to Mrs. Freydel. The interpreter services continued until October 31, 1997, when she was discharged from NYH. In 1997, Mrs. Freydel commenced a federal action against NYH in the Southern District. She alleged that NYH s failure to provide her with an interpreter violated her rights under the -2- [* 3] Americans with Disabilities Act of 1990, the Rehabilitatian Act of 1973, and New York State and New York City human rights laws. The suit sought injunctive relief and compensatory damages. In January 2000, the District Court dismissed the federal claims on summary judgment, and declined to exercise supplemental jurisdiction over the state claims. The dismissal was upheld on appeal in a decision dated December 13, 2000 (Frevdel v New York H o w . , 2000 WL 10264, 2000 US D i s t LEXIS 9 [SD N Y ] , affd 242 F3d 3 6 5 [2d Cir Z O O O ] ) . The Second Circuit agreed with the lower court that there was not enough evidence to conclude that NYH acted with deliberate indifference to Mrs, Freydel's needs. While the federal appeal was pending, Mrs. Freydel, Romelia (as represented by her father), Seymon Freydel, and Lyudmila Freydel (Seymon's wife and Romelia's mother), commenced this action on October 16, 2000. The suit seeks injunctive relief and compensatory and punitive damages based on New York State and New York City human rights and civil rights laws, and negligence. The complaint alleges that NYH's refusal to provide Russian language deaf services for seven days caused emotional distress and trauma to Mrs. Freydel's family members, especially to Romelia who, though a child, was forced to take on life and death responsibilities while interpreting for her seriously ill grandmother in the hospital. In January 2001, Roy Breitenbach, NYH's counsel at that -3- [* 4] time, and Alan Rich, plaintiff's counsel, exchanged several letters about settling the action and about NYH's costs in the federal action. On January 25, Breitenbach wrote to Rich that, if plaintiffs would discontinue the federal and state actions and sign releases, NYH would settle for $10,000 and would waive its right to obtain a bill of costs. On January 29, Rich wrote to Breitenbach, as follows. Pursuant to our discussion, plaintiffs accept $18,000 in full settlement of the above matter. As I indicated, I must file an Order to Show Cause with client affidavits to withdraw or discontinue the state action which I will move on promptly. However, I cannot guarantee when the Court will act on same. Accordingly, as per our discussion, I am annexing a stipulation which withdraws t h e Bill of Costs until further notice without prejudice. At t h e appropriate time, we can file any documents necessary to conclude the matter in its entirety On January 30, Breitenbach returned to Rich a stipulation signed by NYH withdrawing NYH's bill of costs in the federal action. Breitenbach's cover letter stated t h a t New York Hospital will fund t h e settlement upon. its receipt of: (i) a general release signed by Mrs. Freydel and all other Plaintiffs who are of the age of majority; (ii) a signed stipulation discontinuing the federal action with prejudice; and (iii) an order of the Supreme Court, New York County, permitting the state court lawsuit to be settled or discontinued. I look forward to hearing from you regarding this matter In his affirmation supporting NYH's motion, Breitenbach states that Rich has not mentioned this case to him since 2001, although they have had many interactions while litigating other cases. -4- [* 5] Mrs. Freydel died on November 9, 2003. On July 9, 2010, Seymon Freydel was appointed administrator of his mother's estate. On August 18, 2011, Seymon Freydel moved in this action to be substituted f o r his mother, to withdraw the claims of Lyudmila Freydel, and to amend the caption accordingly. The motion papers did not include anything about a settlement. NYH's response to t h e motion claimed that the action was settled in January 2001. However, NYH did not object to the motion, which was granted on November 2 5 , 2011. On December 2, 2011, plaintiffs filed a note of issue stating that the case was ready for trial. NYH contends that the matter is not ready for trial because there has been no bill of particulars or disclosure. Plaintiffs state that there was extensive disclosure in the federal action. Plaintiffs raise a threshold issue regarding the standing of NYH's counsel to bring the instant motion. Plaintiffs argue that NYH's present attorney, Daniel Ratner, was not properly substituted f o r Breitenbach, NYH's previous attorney, as the change of attorney form was not filed until after this motion was made, the form was not filed with the clerk, and NYH's acknowledgment is not on the form. Under CPLR 3 2 1 ( b ) , \\anattorney of record may be changed by filing with the clerk a consent to the change signed by the retiring attorney and signed and acknowledged by the party." CPLR 105 (e) defines clerk as county clerk. -5- [* 6] NYH made this motion was January 12, 2012. on December 2 2 , 2011. The return date NYH filed a form, "Consent to Change Attorneys," with the trial support office on January 9 , 2012. NYH and its former and present attorneys signed the consent form. NYH also notes that the court's website lists Ratner as its counsel, so the change has been officially acknowledged. Although the change of counsel was not done precisely as CPLR 321 (b) requires, that is no reason to deem this motion a nullity. The time between the date of making this motion and the subsequent filing of the consent form was brief, and plaintiffs do not show that the slight delay was prejudicial (seeBevilaccrua v Bloombers-, L.P., 7 0 A D 3 d 411, 412 [l"' Dept 2 0 1 0 1 [although plaintiffs violated CPLR 321 ( b ) in not filing t h e consent to change form, it was a mere formality under the circumstances and did not prejudice defendant]; EIFS, Inc. v Morie Co., 298 A D 2 d 548, 550 [2d Dept 20021 [ t h e court directed the plaintiff to file a consent to change form; failure to do so beforehand did not prejudice defendant]). That NYH signed the consent to change form without an acknowledgment and filed the form with the t r i a l Support office, rather than the county clerk, are errors that do not nullify the change of attorney. The statute has been substantially complied with; nonetheless, NYH should file t h e consent to change form with the clerk. NYH contends that this action cannot continue because the -6- [* 7] parties made an enforceable settlement in 2001, evidenced by the letters between Breitenbach and Rich. Plaintiffs attorney sent a letter with his signature to NYEI s attorney stating that plaintiffs accepted $18,000 as a settlement. NYH s attorney wrote back agreeing. Under CPLR 2104, a stipulation in an action is not binding upon a party unless it is in a writing subscribed by the party or its attorney or reduced to the form of an order and entered or made by counsel in open court. To be enforceable as a contract, the settlement must be expressed in concrete and specific terms (Sterlins Fifth Assoc. v Carpentille Corp., 10 AD3d 282, 2 8 3 [lst Dept 2004]), and must incorporate all the material terms of the purported settlement (Bonnette v Lons Is,.Coll. HOSP.,3 NY3d 281, 285 [2004]). Formalities are not necessarily required. E-mails exchanged between counsel setting forth the terms of a settlement and containing counsels printed names at the end were sufficiently clear to constitute an enforceable agreement under CPLR 2104 (seeWilliamson v Delsener, 59 AD3d 291, 291 [ l s tDept 20091, revg 2007 WL 4101623 [Sup Ct, NY County 20071). In this case, the parties did not reach an enforceable settlement because one of the parties was in her minority when the attorneys exchanged their letters. A person under the age of 18 is an infant, under CPLR 105 (j), The claim of an infant may not be compromised without the approval of t h e court pursuant to -7- [* 8] CPLR 1207 and 1208" (Edionwe v Hussain, 7 AD3d 7 5 1 , 753 [2d Dept 20041; Shao v Fuqazy E x m e s s , Inc., 177 AD2d 422, 422-423 [lst Dept 19911). CPLR 1207 provides that the infant's guardian must make a motion to have t h e court approve a settlement. CPLR 1208 provides that the infant's guardian must make an affidavit setting forth, among other things, the extent of the damages s u s t a i n e d by the infant, the terms and proposed distribution of the settlement and the guardian's approval of both, whether the guardian or any member of its family has claimed damages allegedly sustained as a result of t h e same event giving rise to the infant's damages, and, if so, the amount to be paid in settlement of such claim. The court must approve the amount allocated for t h e child (seeMatter of W.D. v Aliasa, 35 Misc 3d 1 2 0 7 [ A ] , 2012 NY Slip Op 5 0 6 0 0 [ U ] , *2 [Sup Ct, Orange County 20121). A purported settlement of the claims of an infant can be set aside, since a settlement is tentative until approved by court (Rivers v Genesis Holdins LLC, 11 Misc 3d 647, 649 [Sup Ct, NY County 20061). The purported settlement in this case did n o t distinguish between Romelia and the other plaintiffs. much of the settlement was for Romelia. It did not specify how It thus failed t o incorporate material terms. Even if the settlement had incorporated those terms or if the family had agreed on what sum to allocate to Rornelia, the court's approval would still be -8- [* 9] needed for enforcement. NYH argues that laches bars this action. Laches is an equitable doctrine based upon fairness (Continental Cas. Co. v Employers Ins. Co. of Wausau, 60 AD3d 128, 137 [lst Dept 20081). Laches prevents the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to an opposing party (Saratocra County Chamber of Commerce v Pataki, 100 NY2d 801, 816 [20031, cert d e n i e d 5 4 0 US 1017 [ 2 0 0 3 1 ; Dante v 310 ASSOC., 121 AD2d 332, 333 [ l s tDept 19861). The mere lapse of time is not enough to establish laches; there must also be prejudice to the adverse party (Saratosa Countv, 100 NY2d at 816). "Prejudice may be established by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay" (Skrodelis v Norberqs, 272 AD2d 316, 316-317 [2d Dept 20001; Matter of Vickerv v Villacre of Sauqerties, 106 AD2d 721, 7 2 3 [ 3 d Dept 1 9 8 4 1 , a f f d 6 4 NY2d 1 1 6 1 [19851). NYH states that Romelia is probably unrecognizable to witnesses, that Seymon Freydel was not deposed in the federal action, and that Romelia was deposed but she was not a party in that action. The main witness, Mrs. Freydel, died in 2003. In the federal action, plaintiffs took the depositions of six witnesses who, at that time, were employees of NYH. -9- Two of them [* 10] are no longer employed there. In addition, NYH states that relevant documents are probably lost or destroyed. Copies of records were exchanged during the federal action, but the originals probably do not exist. Records held by NYH are subject to a six-year retention policy, pursuant to 10 NYCRR 405.10 (a) (4). Romelia's school records or other evidence that may show emotional distress may not exist any more. For all these reasons, NYH was allegedly prejudiced by the long period of inaction in t h i s case, from 2 0 0 1 until 2011. Plaintiffs respond that the disclosure in t h e federal action may be used in this action. federal action. There were 11 depositions in the Of the six NYH personnel deposed, only two allegedly cannot be located. According to plaintiffs, one of them, Mrs. Freydel's NYH Russian speaking doctor, still has an office in New York City. Plaintiffs provided NYH with two expert reports, which NYH has had for 14 years. A l s o , plaintiffs point o u t that there was extensive disclosure of documents in the federal action. T h e court agrees with plaintiffs t h a t NYH fails to show a degree of prejudice that makes it unfair t o continue with this action. There is no r e a s o n that the evidence in the federal action cannot be used. no longer exists. NYH does not show that crucial evidence In addition, the parties may conduct more disclosure. As NYH states, upon Mrs. Freydel's death the action -10- [* 11] was automatically stayed and the court was divested of jurisdiction to act until a personal representative was appointed for her estate and substituted in the action (seeAblev Inc. v Reid, 52 AD3d 442, 4 4 3 [2d Dept 20083). ProDs., But the action was not concluded. Both sides had a responsibility to save evidence. In addition, the laches argument may fail where the party asserting it could have but did not act to avoid the alleged prejudice, In Ryan v Borq (201 A D 2 d 550 [2d D e p t 1 9 9 4 1 ) , the plaintiff moved for a hearing pursuant to a court order nine years old. The court rejected the defendant's contention that defendant could have moved the action forward by asking the court to schedule a hearing pursuant to the order, thus avoiding any prejudice. In Mancuso v Levitt (154 Misc 2 d 252 [Sup C t , NY County 19921, affd on o t h e r grounds, 201 A D 2 d 386 [ l s t Dept 199411, the defendants failed to show any real prejudice to support dismissal on the ground of laches. The court determined that if the defendants felt they were being prejudiced by the plaintiff's inaction and the passage of time, they were always free to take action themselves. The same applies to NYH, which could have moved to dismiss, pursuant to CPLR 1021, because plaintiffs failed to substitute a representative for the decedent (seeWashington v Min Chunq Hwan, 20 AD3d 303 [lst e p t 20051). D -11- [* 12] and in which prejudice existed, but all those actions involved attempts to rejuvenate actions that had been dismissed or set down as inactive by the court (Rodrisuez v Mitchell, 81 AD3d 624 [2d Dept 20111 [plaintiff moved to restore an action to active status 10 years after it was marked inactive due to plaintiff's failure to appear at a status conference]; Pickett v Federated Dept. Stores, Inc., 79 AD3d 1116 [2d Dept 20101 [plaintiff moved to vacate dismissal after eight years]; Rosenstrauss v Women's Imaqinq Ctr. of Oranqe County, 56 AD3d 454 [2d Dept 2 0 0 8 1 [plaintiff moved to vacate 11-year-old dismissal]; Lewis v New York City Tr. Auth., 38 AD3d 201 [ l a t Dept 2 0 0 7 1 t o vacate dismissal 10 202.271; [plaintiff moved years after dismissal pursuant to 2 2 NYCRR Arroyo v Board of Educ. of t h e Citv of N . Y . , 25 Misc 3d 1229[Al , 2 0 0 9 NY Slip O p 52337[Ul [Sup Ct, Kings County 2 0 0 9 1 [plaintiff moved to r e s t o r e action 13 years after it was "marked off" because plaintiff failed to attend a status conference]). NYH argues that the action should be dismissed because plaintiffs failed to timely substitute a representative for Mrs. Freydel's estate. It is too late to make this argument. The court already determined, in another motion, that a representative could be appointed. -12- [* 13] As this action will not be dismissed, N Y H ' s request for disclosure is granted. have several years ago. The parties will proceed as they should The note of issue is vacated, since it incorrectly states that discovery is completed York S t a t e Dormitory Auth., 84 (seeNielsen v New AD3d 519, 520 [ l BDept 20111). t To conclude, it is ORDERED that defendant's motion is denied to the extent that this action is not dismissed and is granted to the extent that the note of issue is vacated; and it is further ORDERED that t h e parties are directed to appear f o r a compliance conference before this court on November 27, 2012, at 11:OO a.m. in P a r t 59, Room 103, 71 Thomas Street, New York, New York 10013. This is the order of the court. Dated: ENTER : October 11, 2012 -13-

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