Young v New York City Health & Hosps. Corp.
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Young v New York City Health & Hosps. Corp. 2010 NY Slip Op 34012(U) November 10, 2010 Supreme Court, Bronx County Docket Number: 24749/05 Judge: Douglas E. McKeon Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Dec 13 2010 Bronx C~W~i& SUPREME COURT- COUNTY OF BRONX I - - -- DEC - 13 2010 . ------ PART 19A ' Case Disposed SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX· -------------------------------------------------------------------X 1, exN~. -against- Settle Order 0 Schedule Appearance 0 I L __ , _ _ YOUNG,SHAMARIE 0 ------ --- -- - --- ---- ---- 0 !4749/2005 on .. DOUGLAS ' .MCKEON Justice. NYC HEALTH & HOSPITALS CORP ,___ x -------------------------------------------------------------- The fo Bowing papers nwnbered I to _ _ Read on this 1 ~, REARGUE/RENEW/RESETTLE/RECONSI Notice d on March 30 2010 and duly submitted as No. the Motion Calendar of ...~ "~~'m'JM13'"flflilj) Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed Answering Affidavit and Exhibits Replying Affidavit and Exhibits Affidavits and Exhibits Pleadings - Exhibit Stipulation(s) - Referee's Report - Minutes Filed Papers Memoranda of Law Upon the foregoing papers this motion is decided per annexed memorandum decision . . '.) Y'S Offict; i ~-----<Dated: II I lt:J I /{) aL Hon. _ _ _ _ _ _ _ _ _ _ _ _ __ DOUGLAS E. MCKEON, J.S.C. [* 2] FILED Dec 13 2010 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: IA l 9A ------------------------------------------------------------------------)( SHAMARIE YOUNG, an infant by his mother and natural guardian, LYDIA GRIFFITH and LYDIA GRIFFITH, Individually, Plaintiff, -against- MEMORANDUM DECISION Index No. 24749/05 NEW YORK CITY HEAL TH AND HOSPITALS CORPORATION (LINCOLN MEDICAL and MENTAL HEAL TH CENTER) and ST. LUKE'SROOSEVEL T HOSPITAL CENTER, Defendants. --------------------------------------------------------------------------X HON. DOUGLAS E. MCKEON: Motion by Defendant, NYCHHC. to renew and reargue the order of this court dated February 2, 2010, which granted the Plaintiffs motion for leave to file a late Notice of Claim, is granted to the following limited extent: That portion of the motion seeking reargument on the basis that the court, in its prior order, overlooked or misapprehended matters of fact or law in allowing Lydia Griffith to file a late Notice of Claim is granted only so that the court may clarify that leave to file a late Notice of Claim was granted solely to the infant-Plaintiff, Shamarie Young. Plaintiffs papers in support of the late claim motion made is clear that the motion was filed on behalf of the infant-Plaintiff alone. Also, although the Plaintiffs mother, Lydia Griffith, was named individually in the caption, the body of the notice indicates a sole claimant, Shamarie Young, with Lydia Griffith as his mother and natural guardian. Furthermore, the [* 3] FILED Dec 13 2010 Bronx County Clerk Notioe of Claim alleged injuries sustained by the infant-claimant only. Finally, the court reminds movant that. in a March 5 decision, it ordered Lydia Griffith to serve and file a stipulation of discontinuance relative to any individual claims in this action. That portion of the motion seeking reargument on the basis that the court overlooked NYCHHC's argument that the Lincoln Medical records did not contain the essential facts constituting the claim is denied. The court did not overlook the argument that there could be no documentation in the Lincoln Hospital record concerning the mother's labor and delivery or the infant-Plaintiffs medical condition at birth as he was not born at Lincoln Hospital. However, Defendant's expert, Dr. Halbridge, in reviewing the prenatal records from Lincoln Hospital, opined that the sonogram examination of May 11th 2004 revealed intrauterine growth restriction and severe oligohydramnios, signs of placental insufficiency which necessitated prompt delivery. Dr. Halbridge further opined that this prenatal chart from Lincoln Hospital provided NYCHHC with actual knowledge of harm to the fetus. Movant's argument that the court mistakenly relied upon records from St. Luke's and Long Island College Hospital in holding that the essential facts of the malpractice claim are evident from the Lincoln Hospital records is unfounded as whatever consideration the court may or may not have given to those records cannot be inferred from this court's prior order. As such, when this court concluded that movant had demonstrated. by specific citations to medical records and deposition testimony, (of Gary DiCanio, M.D. and Dr. Sayemi, M.D.) that the facts constituting Plaintiffs claim were evident on the face of the medical records the court did not misapprehend or overlook any matter of fact or law. The [* 4] FILED Dec 13 2010 Bronx County Clerk court applied settled law to the particular facts of the case and exercised its discretion in granting plaintiffs initial motion for leave to file a late Notice of Claim. NYCHHC's argument that after the prior motion papers were submitted it learned that Plaintiffs expert, Dr. Rosario Trifiletti. was not licensed to practice medicine in either New York or New Jersey is unavailing. This infonnation was previously submitted to the court under cover of an attorney's letter dated February 1, 2010. Since then, Plaintiffs attorneys have responded to that letter pointing out that Dr. Trifiletti was indeed licensed to practice medicine in Ne\v York or New Jersey on October 13, 2009, when he executed his affirmation in support of the late Notice of Claim motion. The court notes that the same argument to disregard an affirmation submitted by Dr. Trifiletti was made by Defendant and rejected by the Honorable Justice Suarez in Almonte v. Montefiore Medical Center, Supreme Court, Bronx County, Index Number 21079/06 (March 18, 2010). In that decision. Justice Suarez noted that registration is "primarily a ministerial and revenue generating concept." Moreover, submitting an expert affirmation is not "diagnosing, treating, operating or prescribing such as to constitute the practice of medicine." Id. The court agrees. In conclusion, this motion is granted only to the extent of clarifying this court's February 2, 2010 order. As discussed, supra. there is no basis for renewal or reargument of the motion and cross-motion resulting in that order. So ordered. DATED: BRONX, NEW YORK ~ /0,2010
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