Ericsen v Benton

Annotate this Case

Download PDF

Ericsen v Benton 2017 NY Slip Op 32927(U) December 4, 2017 Supreme Court, Albany County Docket Number: 2235-11 Judge: Kimberly A. O'Connor Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] ST ATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY DAYID ERICSEN as the Administrator of the Estate of LEONA A. ERICSEN (Deceased), and ANTHONY ERICSEN, Plaintiffs, DECISION AND ORDER Index No. 2235-11 RJI No. 01-11-105099 -against- ROBERT E. BENTON, M.D.; CAPITAL CARDIOLOGY ASSOCIATES, P.C.; JOSEPH FAROOQ, M.D.; PULMONARY & CRITICAL CARE SERVICES, P.C.; PULMONARY AND CRITICAL CARE SERVICES, P.C.; JAMES P. ARAM, M.D.; BRUNSWICK FAMILY MEDICAL PRACTICE, PLLC; JOHN J. O'BRYAN, M.D.; TROY FAMILY PHYSICIANS, P.C.; and SAMARITAN HOSPITAL OF TROY, NEW YORK, Defendants. (Supreme Court, Albany County, All Purpose Term) (Justice Kimberly A. O'Connor, Presiding) APPEARANCES: CONWAY & KIRBY, PLLC Attorneys for Plaintiffs (Michelle A. Storm, Esq., of Counsel) 9 Cornell Road Latham, New York 12110 NAPIERSKI, VANDENBURGH, NAPIERSKI & O'CONNOR, LLP Attorneys/or Defendants Joseph Farooq, MD. Pulmonary & Critical Care Services, P.C., and Pulmonary and Critical Care Services, P. C. (Christine M. Napierski, Esq., of Counsel) 296 Washington Avenue Extension, Suite 3 Albany, New York 12203 al ;I> :z -< MAGUIRE CARDONA, P.C. Attorneys for-Defendant Samaritan Hospital of Troy, New York (Alicia M. Dodge, Esq., of Counsel) 22 Clinton Avenue Albany, New York 12207 Page 1 of 4 - ,,,. ..... r- -_, 0 fTI ("") (") 0 c _, % . N .,, -< :x (") r,.., ::0 ::0: -.. N C» ::--rJ ,-.-· I' I 0 fT1 < fTl 0 [* 2] O'CONNOR, J.: In this action to recover damages for medical practice and lack ofinformed consent, plaintiffs David Ericsen, as the Administrator of the Estate of Leona A. Ericsen (Deceased), and Anthony Ericsen (collectively "plaintiffs"), have moved, pursuant to CPLR § 603, for an order: (I) severing the first, second, tenth, and eleventh causes of action as well as part of the fifteenth and seventeenth causes of action as against defendants Robert E. Benton M.D. ("Dr. Benton"), Capital Cardiology Associates, PC ("CCA"), James P. Aram, MD ("Dr. Aram"), and Brunswick Family Medical Practice, PLLC ("BFMP") from the other named defendants; and (2) upon severance, directing that the trial against those defendants proceed first. Defendant Samaritan Hospital of Troy, New York supports the application, and only defendants Joseph Farooq, M.D., Pulmonary & Critical Care Services, P.C., and Pulmonary and Critical Care Services, P.C. opposed the motion. Generally, severance is employed by the courts to promote convenience or to avoid prejudice (see CPLR § 603; see Miller v. Howard, 137 A.D.3d 1698, 1699 [4th Dep't 2016]). Although the determination to grant or deny a severance is a matter ofjudicial discretion, "[that] discretion should be exercised sparingly" (Shanley v. Callanan Indus., 54 N.Y.2d 52, 57 [1981]; Miller v. Howard, 137A.D.3dat1699; UticaMut. Ins. Co. v. American Re-Insurance Co., 132 A.D.3d 1405, 1405 [4'h Dep't 2015]); State Farm Fire and Cas. Co. v. Dayco Products, Inc., 19 A.D.3d 923, 924-925 [3d · Dep't 2005]; Finning v. Niagara lvfohawk Power Corp., 281 A.D.2d 844, 844 [3d Dep't 2001 ]). All matters being equal, severance increases litigation and places an extra burden on court facilities by requiring two separate trials instead of one. This is especially true in cases in which complex issues are intertwined. In those cases, the better course is to deny severance or separate trials and to instead facilitate one complete and comprehensive hearing that determines all the issues between the parties at the same time (see Shanleyv. Callanan Indus., 54 N.Y.2dat 57 [1981]; State Farm Fire andCas. Page 2 of 4 [* 3] Co. v. Dayco Products. Inc., 19 A.D.3d at 925). Upon review, the Court is not persuaded that severance is appropriate here. Plaintiffs argue that the causes of action against Dr. Benton, CCA, Dr. Aram, and BFMP should be severed and tried separately from the causes of action against the other defendants because those causes of action for medical malpractice are separate and distinct from the causes of action based on lack of informed consent and arise out oftwo, separate hospital admissions. Plaintiffs submit that given the extremely complex medical issues presented in this case, trying all the claims together will likely cause jury confusion and result in unnecessary prejudice. The Court disagrees, and finds that the complexity of issues in this case and the likelihood of inconsistent verdicts favor a single trial (see Shanley v. Callanan Indus., supra). Furthermore, any claim of prejudice based on juror confusion "is speculative at best" (State Farm Fire and Cas. Co. v. Dayco Products, Inc., supra). Therefore, the Court, in the exercise of its discretion, denies the motion. Any remaining arguments have been considered and found to be lacking merit, or need not be considered in light of the foregoing determination. Accordingly, it is hereby ORDERED, that plaintiffs' motion is denied for the reasons stated herein; and it is further ORDERED, that the trial of all defendants will proceed as scheduled on January 8, 2018. This memorandum constitutes the Decision and Order of the Court. The original Decision and Order is being forwarded to the attorneys for defendants Joseph Farooq, M.D., Pulmonary & Critical Care Services, P.C., Pulmonary and Critical Care Services, P.C. A copy of this Decision and Order together with all papers are being forwarded to the Office of the Albany County Clerk for filing. The signing of this Decision and Order and deiivery of a copy of the same to the County Clerk shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the Page 3 of 4 [* 4] applicable provisi_ons of that rule relating to filing, entry, and notice of entry of the original Decision and Order. SO ORDERED. ENTER. Dated: December 4, 2017 Albany, New York HON. KIM RL YA. O'CONNOR-: Acting Supreme Court Justice -- ~ ~ .~"' -...J . . ~~\l~[1,"t-A'S Papers Considered: I. 2. 3. 4. Notice of Motion, dated August 31, 2017; Attorney Affidavit (Michelle A. Storm, Esq.), undated, with Exhibit A annexed; Memorandum of Law, dated August 29, 2017; Affidavit in Opposition (Christine M. Napierski, Esq.), sworn to September 14,2017; Affidavit in Support of Plaintiffs Motion for Severance (Alicia M. Dodge, Esq.), sworn to September 18, 2017, with Exhibit A annexed; and Reply Attorney Affimiation (Michelle A. Storm, Esq.), sworn to September 27, 2017, with Exhibit A annexed. Page 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.