Doe v Goldweber

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Doe v Goldweber 2011 NY Slip Op 32819(U) October 19, 2011 Supreme Court, New York County Docket Number: 101585/08 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. SCANNED ON 1012012011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: Not- La5 of Motion/ Order to Show Csuoo Anrwrhng Affldavhm - NEW YORK COUNTY PART b - Affldavttm - Exhibb ... - Exhlblta Roplylng Afndm- Cross-Motion: 0 Yes Upon thr fomgolng paprnr I Ir ordrrmd thmt t k rnotlon t h :heck one: FINAL DISPOSITION B'NON-FINAL Check If appropriate: 0 DO NOT POST 0 SUBMIT ORDER/ JUDG. DISPOSITION 0 REFERENCE SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: IAS PART 6 _ 1 - 1 - 1 1 - - _ 3 - 1 _ 3 - 1 - - - _ - I - I I - I - - - - - - I y I - L - - - - - - - x - JANE DOE and JOHN DOE,names being fictitious to protect plalntiffs identitics, -against- BRIAN A. OOLDWEBER, M.D., BRIAN A. GOLDWEBER, M.D., LLC, NORMAN SOHN,M.D., SOMERSET SUROICAL ASSOCIATES, P.C., ABBE J. CARNI, M.D., and ABBE J. CARNI, M.D., P.C., Defendant. Indux No. 101585/08 Plaintiffs, .. JOAN B. LOBIS, J.S.C.: FILED OCT 20 2011 NEW YORK COUNTY CLERKS OFFICE In Motion Sequence Number 001, defendants Norman S o h , M.D., Somerset and Surgical Associates, P,C. ( SomersetP.C. ) (collectivelythe Somerset Defendants ) move by order to show cause, pursuant to C.P.L.R. 2 14-a and Rules 321 l(a)(5) and 32 12, for an order dismissing plaintiffs action as against t e on the grounds that it is time-barred; for an order pursuant to hm C.P.L.R. Rule 32I2 granting them summary judgment on the grounds that plaintiffs cannot makc E & out a case that a negligent act caused them iqjury; or for an order of partial summary judgment pursuant to C.P.L.R. Rule 3212 dismissing plaintiffs claims for punitive damages, In Motion Sequence Number 002, Abbe C r i M.D.,and Abbe Carni, P.C., an, ( Cmi P.C., ) (collectively the Carni Defendants ) move by order to show cause, pursuant to C.P.L.R.9 2 14-8 and Rules 321 l(a)(S) and 3212, for an order dismissing the complaint as against them. Plaintiffs oppose both motions, which are hereby consolidated for disposition. Defendants B i n Goldwebcr, M.D., Brian Ooldwcbcr, M.D., ra and P.C.,have been discharged in bankruptcy and have not appeared in this action. [* 3] This case is one ofmany involving patients who akgedly contracted hepatitis C due to the acts of named co-defendant Brian A. Cloidwcber, M.D., anesthesiologist. In 2007, Dr. an Cioldweberbecame the focus of aNew York City Departmentof H a t ( NYCDOH) elh investigation after B number of his patients w r discovercd to have contracted hepatitis B and C after their ee treatment with him. These patients all undenvant anesthesia in August 2006. NYCDOH eventually determined that the manner in which Dr. Ooldweber administered anesthesia caused a hepatitis outbreak among these patients. r Plaintiff Jane Doe &a L.E. did not treat with D .Cioldweber in August 2006. Shc treated wt him and codefendant Dr. Sohn on May 13,2005. That day, D .S o h performed a ih r colonoscopy at his office while D .Ooldweber administered anesthesia. Dr. S o h diagnosed L.E. r with hemorrhoids and an anal fissure. L.E.had one follow-up at Somerset P.C. July 15,2005, on and did not retum to Dr. Sohn thereafter. After NYSDOH advised D .Ooldweber s patients from r 2003 through 2007 to be tested for hepatitis B and C and human immunodeficiency vim,L.E. tested positive for hepatitis C. On February 8,2010, L.E. underwent a liver biopsy that was positive for chronic hepatitis, grade 0 to 1, stage I . Dr. Goldweber worked for Carni P.C., of which Dr. Carni is the president and sole shareholder. According to Dr. Cami s examination before trial ( EBT )testimony, sometimein the fall of 2003, Dr. Cami interviewed Dr. Goldweber for a position at Cam1 P.C. D .C m i reviewed r D .Ooldwcbcr s curriculum vitae (,,C.V. ) had (a very positive impression of D .Qoldweber r and r after the two spoke. He also reviewed recommendation letters submittedonD .Ooldwebcr sbehalf. r D .C r i did not contact Dr. Ooldweber s prior places of employment nor staffat the hospitals with r an -2- [* 4] which D .Goldwebcr w s affiliated. He did not contact tbc New York State Department of H a t r a elh State Ofice of Professional Medical Conduct ( OPMC ) conduct any other independent checks nor on Dr. Ooldwebcr. Dr. Cami did not know that Rochester Oeneral Hospital, one of Dr.Goldweber s r previous employers, had limited D .Goldweber s privileges by not allowing him to administer anesthesia for mqjor vascular and cerebral vascular treatment, or for traatment involving children under five years old. D .Carni was also unaware that In 1999, OPMC had charged Dr. Qoldwcber r with several acts of misconduct, including altering a medical record; failing to monitor a patient; administering anesthesia to a patient that WBS contraindicated by the patient s medical history; administering a long acting anesthesia without securing a patient s airway; and failing to stay with a patient until she became medically stable. In April 1999, Dr. Goldwcbcr admitted guilt to the charges insofar as they implicated him in negligence, and OPMC suspended his license for three years. The suspension was stayed as long as D .Qoldweber complied with a numbcr of terms, r including that his practice be supervised for one year and randomly supervised thereafter; that he complete a training program; and that he pass a competency evaluation. On or about February 4, 2002, OPMC charged Dr.Ooldweber with misrepresenting the status of his license and Rochester General Hospital s limitation on his privileges on two job applications. D .Ooldweber admitted to r the professional misconduct and was fined $20,000. In October 2003, as part of a pre-hiring performance evaluation, D .Carni supervised r Dr. Ooldwcber as he administered anesthesia to patients at Dr. Soh s office. D .Carni felt that D . r r Goldweber performed excellently. D .C d observed that Dr. Goldwcber administered propofol r -3- [* 5] from one 50 milliliter vial to multiple patients, even though D .C m i acknowledged that the r Physician s Desk Reference ( PDR ) proscribes this practice. As per C m i P.C. s and D . r Goldweber s standard practice for administering anesthesia, the propofol was withdrawn from the vial into a syringe. Tho syringu was then attached to a connecting tubing that administers the anesthesia f o the syringeand into the patient intravunously. Dr. Carni testified that thcrc is almost rm no risk of the transmission of hepatitis C when administering anesthesia in a sterile manner. I Based on D . Ooldweber s performance in October 2003, Dr. Cami hired Dr. r . Goldwcber to work for C r i P.C. Upon hiring, Dr. Cioldweber supplied Dr. C r i with copies of an an his medical license, his D u Enforcement Administration certificate, and his medical malpractice rg insurance. Dr. Goldweber also showed D .Carni his infection control certificate, which was set to r expire in May 2006. Dr. S o h testified at his EBT that he relied on D . Cami to investigate the r anesthesiologists working for Carni P C .and that he did no independent investigations. D .Sohn .. r assumed that all of D .Carni s anesthesiologists were board certiflcd, but set forth that it would not r be unacceptable if they were not. Dr. Sohn later testified that had he known that Dr.Ooldweber was not board certified, he would have discussed it w t Dr. Carni and seen what his judgment was on ih that. Dr. S o h set forth that he never saw Dr. Goldweber use the same syringe to redose propofol nor did he see him use the same syringe on more than one patient. O many occasions, D .Sohn n r obswved D .Goldweber use one rnultidosc propofol vial on one or more patients. According to Dr. r Soh s EBT testimony, no other patients on the day or the day prior to the day that L.E. received [* 6] treatment were positive for hepatitis C. D .S o h maintained that the contraction of hepatitis C is r not a risk of a colonoscopy under general anesthesia. During the course of NYCDOH s investigation, Dr.Goldweber reported that it was possible that he would give a second dose of medication to the m e patient with the samc syringe r used to give the first dose. NYCDOH concluded that hepatitis was likely spread when D . Ooldwebtr reused a syringe to obtain a second dose of propofol for a source patient ( .a patient I&, , already infected with hepatitis B or C), because microscopic amounts of blood can flow from the source patient s blood stream through the connecton and into the syringe,thereby contaminatingthe syringe. The blood from the syringe then likely flowed into the vial, contaminating the vial. Once the propofol w s withdrawn a from the contaminated vial for a diffcrcnt,patient, that patient was at risk for infection. NYCDOH identified thrce days of unsanitary practices: June 3,2005, and August 14-15,2006. NYCDOH also determined that it was inappropriate to use a single vial on multiple patients, because using medication vials in [this] manner has been shown in many pravious articles to be a risk factor for transmission of bloodborne pathogens. On October 3, 2008, OPMC charged D .Cioldweber with misconduct related to r NYCDOH s investigation. During a hearing on the charges, Dr. Goldweber set Forth that he would only r c w the syringe in cases of Dr. Goldweber also expressed surprise that blood and hepatitis could flow back through the connectors and into the syringe. OPMC also uncovered evidence that D .Goldweber stored used propofol vials overnight for later use. On March 20,2009, r During his EBT,Dr. Goldweber denied ever reusing syringes. -5- [* 7] OPMC sustained charges of gross negligence; gross incompetence; negligence on more than one occasion; incompetence on more than one occasion;and failure to comply with provisions governing the practice of medicine. OPMC revoked D .Ooldweber s license to practice medicine. r Plaintiffs commenced this action by the filing of a summons and complaint on January 25, 2008; alleging that L.E. had been negligently exposed to hepatitis C during Dr. Cfoldweber sadministrationof anesthesia on M y 13,2005. Plaintiffs further allege that the moving a defendantsnegligently supervisedand negligentlyhiredDr. Ooldweber. Plaintiffs also allege causes of action sounding in lack of informed consent; loss of sanrices; failure to promulgate proper rules and regulations; and vicarious liability, Plaintiffs seek punitivedamages as well. Now,the moving defendants move for summary judgment dismissal of all of these claims. Turning first to the moving defendants contention that plaintif% c a m art lis untimely, a plaintiff must commence a medical malpractice action within two and one-half years from the act, omission or failure complained of[.] C.P.L.R.6 214-a. An action sounding in general negligence m s be commenced within three years. C.P.L.R. 214(5). The courts have ut 8 determined that a claim sounds in medical malpractice when the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licenaed physician [but] when the gravamen of the complaint is not negligence in f urnishing .. . medical treatment to a patient, but thc . , . failure in fulfilling a different duty, the claim sounds in negligence. v,, - 88 N.Y.2d 784,788 (1996) (internal citations omitted). A supplemental summons and amended complaint was filed on February 26,2008. -6- [* 8] The moving defendants contend that plaintiffs claims sound in medical malpractice, so they had two and ono-half years fkom May 13,2005 (the date of L.E. s colonosocpy) to file their complaint, thereby rendering the January 25,2008 filing untimely. They M e r argue that plaintiffs cannot benefit f o any of the exctptiorw to the statutes of limitations, so their complaint must be rm dismissed. In opposition, plaintiffs assert that their claims sound in general negligunce, not medical malpractice, so they had thrcc ycars (or until May 13,2008) to flle their complaint, thereby rendering the January 25,2008 filing timely. Plaintiffs further assert that even if the two and one-half-year statute of limitations applies, they arc entitled to an extension of that time under the theory of equitable estoppel, based on their allegation that the moving dcfcndants fraudulentlyconcealed the fact that Dr. Ooldweber was not board certified. Plaintiffs assart that had L.E. known that D . r Cioldweber was not board certified, she would not have undergone the procedute. As the Somerset Defendants concede in their reply, the negligent hiring of an employee who subsequently commits acts of malpractice does not constitute a breach of an integral part of rendering medical treatment, but rather derives from [a] failure to f l i l a differen4 more hfl general duty to the patient. D Leon Y, o , 164 A.D.2d 743,749-50 (1st Dep t 1991) (citations omitted) (emphasis in original); slap v. New York CItv W 194 A.DZd 422,423 (1 st Dep t 1993). Therefore, the three year statute of limitations for negligence actions applies to the causes of action for negligent hiring (Pe 747; ass alsrz W c r v. R o U, 65 N.Y.2d m,164 A.D.2d at 65, 73 [1985]), rendering the negligent hiring and supervision claims timely. Similarly, a failure to promulgate rulcs and regulations to unsure sterile and sanitary equipment does not implicate questions of medical competence orjudgment linked to the treatment of [L.E.] , but rather centers on the moving defendants independent duties 89 -7- [* 9] -. 88 N.Y.2d 784,788 (1 996). Thus, the three providers of medical care. year statute of l m t t o s for negligence actions applies to the claim that the moving defendants iiain failed to promulgate rules and reguletions to ensuru sterile and sanitary equipment, rendering that claim t m l . iey On the other hand, the allegation that Dr.Ooldweber failed to use sterile technique in administering intravenous anesthesia to individual patients bears a substantial relationship to medical treatment by him, so the two and one-halfyear statute of limitations for m d c l malpractice eia claims applies & w v. 33 A.D.3d 959,961 [2d Dcp t 2006]), rendering the claims sounding in defendants vicarious liability for D . Goldweber s alleged malpractice and lack of r informed consent untimely. &&gel v. 243 A.D.2d 344 (1st D q t 1997). Contrary to plaintiffs argument, the facta of this case do not support precluding defendants from relying on the defense of statute of limitations based on equitable estoppel. For equitable estoppel to apply, them must be a showing that after the malpractice, the dcftndant s specific, affirmative act kept the plaintiff from filing a timely lamuit v, N o w r e Umv. 7 N.Y.3d 548 [2006]); this simply has not been shown here. Accordingly, the informed consent and vicarious liability claims must be dismissed. Turningto plaintiffs timely claims, to establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee s propensity for the conduct which caused the injury. Shory. I - 83 A.D.3d 927,928 (2d Dep t 201 1). This rule applies to independent contractors as well. & -ca v. C 67 A.D.3d 948 (2d Dep t 2009). A defendant -8- [* 10] moving for summary judgment on such claims must demonstrate with sufficient evidence that the defendant neither knew nor should have known of the contractor's propensity to engage i the n 18 A.D.3d 859,860 conduct that caused the injury. (2d Dpt 2005). If the defendant meets this burden, in order to raise an issue of fact, the plahtiff e' must offer evidence showing that the employerdefendant was aware of an independent contractor's prior conduct that w s either identical to the conduct that ultimately caused the plaintiff injwy or of a a slightly different nature that neverthelcssmade the plaintiff g ultimate injury fomecablc. SeeT.W, v. Citv ofNtw YQ& 286 A.D.2d 243,24546 (1st Dep't 2001) (iury could reasonably conclude that it is foreseeable that an employee with convictions for assault would commit a sexual assault when working w t children); ih &&m v. Jawh,292 A.D.2d 559,559-61 (2d Dcp't 2002) (in case in which school employee had an improper sexual relationship with a student, summary judgment danied where there waz evidunce that school district was aware of employee's prior romantic overtures to students); 'n v, ,209A.D.2d 499,500 (2d Dep't 1994)(plaintiff whose vehicle was struck in the rear by a vehicle driven and stolen by defendant's employee could not make a negligent hiring claim without proof that defendant WM aware of employee's propensity to steal). The C r i Defendants argue that they had no reason to know that D .Qoldweber an r ''would break sterile They maintain that they propurlyrelied on D .Goldweber's letters r of recommendation; the qualifications on hh C.V.; and D . Card's own observations of Dr. r an Goldwebw to conclude that Dr. Ooldweber would perform his duties safaly. The C r i Defendants ~ ' The Somerset Defendants did not argue that they were entitled to summary judgment on this issue until their reply. As such, the court will not consider this request for relief. ~J&&Q, 184 A.D.2d 415 (1 st Dep't 1992); fitt v, , 182 A.D.2d 560 (1st Dcp't 1992). -9- [* 11] assert that Dr. Goldweber s prior disciplinary record was unknown to them;that the disciplinary rccord did not involve unsanitarypractices;and that D .Ooldweber never admitted to any particular r act of negligence. The Carni Defendants futher assert that it would be unreasonable and contrary to public policy for the court to allow this issue to go to a ] ~ because a verdict in favor of these , plaintiffs would make medical facilities reluctant to hire any doctor who admits to misconduct. In opposition, plaintiffs assert that it was insuficient for Dr. C m i to rely on D . r Ooldweber s C.V.,because a C.V.is nothing more than a self-serving advertisement of a physician s alleged accomplishments. Plaintiffs M e r argue that Dr. Goldwcbtr had a documented history of negligently administering anesthesia. They further assert that Dr. Carni wns aware of Dr. Goldwcbcr s improper we of propofol. In a separate afflrmation, plaintiffs expert (named redacted), who is board certified in anesthesiology,sets forth that it was a deviation f o the rm standard of care to muse vials of propofol on multiple patients, acrou multiple days, because of the substantial risk of contamination of the medication through the backflow of blood. The Cami Defendants have met their burden for summary judgment on the negligent hiring, retention, and supervision claims by setting forth that they wen unaware of D , r Cloldweber s previous misconduct; appropriatcly relied on letters of recommendations; and never observed Dr, Ooldweber administer anesthesia in an unsanitary manner. The burden thus shifts to plaintiffs to raise a triable material issue of fact. The misconduct committed by Dr. Ooldweber prior to his employment wt Carni P.C.,89 found by OPMC,would not put the CarnI Defendants on ih notice of the specific conduct hmin: his unsanitary practices. & Coffev Y. City ofNcw YQ& 49 A.D.3d 449, 450 (1st Dep t 2008); v. w , A.D.2d 499, 500 (2d Dep t 1994). 209 -10- [* 12] However, plaintiffs have raised an issue of fact aa to the negligent hiring and supurnision claim by setting forth that the Carni Defendants wuru aware of Dr. Goldweber's standard practice to use one propfol vial on more than one patient, and by showing that admi~stering anesthesia in such a manner made transmission of a virus, like hepatitis, foreseeable. The foremaability of such is supported by the medical literature refmnced inNYCDOH's report and plaintiffs' expurt's opinion. Turning to the next aspect of the summary judgment motion, the moving defendants argue that plaintiffs will not be able to establish that Dr. Ooldwebcr committed malpractice or proximately caused L,E. contract hepatitis. On a motion for summary judgment, a defendant in to a medical malpractice action bears the initial burden of demonstrating that there was either no deparhrre from the standard of care, or that any such departure did not proximately cause plaintiffs alleged injury or damage. m v , St. ,87A.D.3d238,2011N.Y.SlipOp.5641(Ist Dep't 201 1). Once this burden i met, the non-moving party must p s u n t "cvidentimy proof in s admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvrrrgz, 68 N,Y.2d at 324 (1986). The moving defendants arguc that there is no evidence in the record that D . r Goldweber acted In an unsanitary and/or unsafe manner when he administered anesthesia to L.E. The moving defendants set forth that the NYCDOH and OPMC reports are bereft of any mention of anesthesia administered on May 13,2005 and that there is no evidence that a hepatitis outbreak occurred on that day. The moving defendants also assert that thcre is no evidence that L.E. did not have hepatitis prior to her colonoscopy nor is there evidence that she k a m e infected wt the v i m ih immediately thereafter. In support of their motion,the moving defendants rely on the affirmation -1 1- [* 13] of H. Alan Schnall, M.D,,who is duly licensed to practice medicine in New York and board certified in internal medicine. Dr. Schnall, in his review ofthe records, sets forth that the mere fact that L.E. was diagnosed with hepatitis subsequent to her colonoscopy docs not mean that she was not infected with the virus before. Dr. Schnall maintains that hepatitis C can be asymptomatic and go many y c m without being diagnosed. In opposition, plaintiffs argue that they can establish that D .Goldweber acted in a r unsafe and unsanitary manner when he administered anesthesia to L.E. by relying on habit evidencc. Plaintiffs argue that NYCDOH s and OPMC s findings establish that it was Dr. Ctoldwebcr s custom and habit to administer anathesia in an unsafe manner. Plaintiffs further argue that the doctrine of =@-should apply to this cast in that patients do not ordinarily contract hepatitis C during colonoscopits;that the anesthesia was administered under the exclusive control of Dr. Qoldweber; and that L E did not contribute to her injury, In support ofthcir motion, plaintiffs expert concludes r that D .Goldwebcr reused syringes to redose propofol and that such practice was a deviation from the standard of care. The expert maintains that L.E. lacks other risks factors for contracting hepatitis C; that there is no evidence that L.E. had any abnormal liver tests prior to the colonoscopy; that there is no evidence that L.E. could have contracted the virus somewhere else; and that both L,E. shusband and son we negative for hepatitis C. L.E. offers her own affidavit in opposition. She sets forth that she was not diagnosed with hepatitis C prior to June 29,2007, nor did she undergo or participate in any activities that ostensibly would put her at risk for transmission prior to June 29, 2007, likc blood transfusions or scope proccdwes. -12- [* 14] In reply, the C r i Defendants assert that the findings of OPMC and NYCDOH EWB an not admissible under Public Health Law 0 10(2), because these investigations did not involve L.E. or the day on which her treatment occurred. The Carni Defandants m e r argue that plaintiffs cannot establish that D .Ooldweber had a habit r of reusing syringes, because he testified that the administration of propofol varied from patient to patient. The moving defendants have met their &m burden for summary judgment by setting forth that there is no proof that Dr. Ctoldweber committed malpractice nor proof that L.E. contracted hepatitis on the exact day of May 22,2005. Ncverthtless, both Dr. Carni and D .Sohn r a m t e in their dcpositiona that contraction of hepatitis C is not a normal risk of undergoing a ditd colonoscopy; there is no dispute that plaintiff, while unconscious, was under the cxclusive control of Dr. Sohn and Dr. aoldweber during the colonoscopy; and L.E.and her expert set forth that she was neither diagnosed with nor showed signs of hepatitis C prior to the colonoscopy, nor had she engaged in any behavior that would have put her at risk for contracting the discase. Plaintiffs have sufficiently rebutted the moving defendants prima faGiE showing wt competent evidence, ih establishing that competing theories of liability exist and warranting denial of summary judgment at this juncture. The issues of the applicability of the doctrine of and the admissibility of the proposed habit evidence are best left to the trial court. Turning to that branch ofthe motion seeking to d s i sthe punitive damages claims, ims punitive damages are not intended to compensate a plaintiff, but instead scrve to punish the wrongdoer and deter that individual and those in a similar situation f o engaging in the same rm behavior in the future. Bnss v. h u b wise sews.. -13- 8 N.Y.3d 478,489 (2007). More than mere [* 15] negligence or carelessness is required to permit a punitive damages claim. RCVv. Park View 262 A.D.2d 624,627 (2d Dep t 1999);W c r v. C ,208 A.D.2d 900,901 m (2d Dep t 1994). It must be shown that the defendant acted in a manner that was wantonly dishonest, grossly indifferent to patient care, or malicious and/or reckless. Schiffcr v. Sue& ,36 A.D.3d 520,521 (1st Dep t 2007). Thc moving defendants assert that there is no evidence of evil motive on their pail nor evidencc of willful or Intentional misconduct, They further assert that Dr. Goldweber has already been punished for his negligence so there would be no deterrent effect for the punitive damages. The moving defendants contend that there is no proof that they participated in or consented to Dr. Goldwekr s malpractice. In opposition, plaintiffs concede that the moving defendantsdid not participate in or consent to Dr. Ooldweber s unsanitary practices. In opposition, plaintiffs assert that the moving defendants showed utter indifference to D . Qoldweber s past r misconduct and his use of one vial of propofol on more than one patient, which they argue is enough to allow the issue of punitive damages to survive summary judgment. There ig no evidence that the moving defendants acted recklessly wt regard to the ih supervision and hiring of Dr. Ooldwebcr. At worst, they acted negligently in hiring him with the knowledge that he was administering anesthesia in an inappropriate way, but there is no evidence thnt they had any knowledge or should have known that he was reusing syringes. Therefore, those branches of the moving defendants motions seeking dismissal of the claims for punitive damages are granted. Accordingly, it is hereby -14- [* 16] ORDERED that the motion of defendants Norman S o h , M.D., Somerset and Surgical Associates, P.C., summary judgment (Motion Sequence Number 001) is granted to the for extent that all claims sounding in vicarious liability, lacked of informed consent, and punitive damages are severed and dismissed; and it is M e r ORDERED that the remainder of Motion Sequence Number 001 is denied; and it is further ORDEREDthat the motion ofAbbe Carni, M.D., Abbe C r i P.C., for summary and an, judgment (Motion Sequence Number 002) is granted to the extent that all claims sounding in vicarious liability, lacked of informed consent, and punitive damages are severed and dismissed; and it is further ORDERED that the remainder of Motion Sequence Number 002 is denied; and it is further ORDERED that the parties shall appear for a prc-trial conference on December 13, 20 I I , at 9:30 a.m. Dated: October 19,201 I F: I L E D OCT 20 2011 NEW YORK COUNTY CLERKS OFFICE -15-

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