Matter of Estate of Maltese v Diagnostic Med. Imaging of L.I., P.C.

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Matter of Estate of Maltese v Diagnostic Med. Imaging of L.I., P.C. 2011 NY Slip Op 33395(U) December 8, 2011 Sup Ct, Nassau County Docket Number: 9831/09 Judge: Michele M. Woodard 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU THE ESTATE OF JOSEPH V. MALTESE by BARBARA MATESE , Administrator and BARBARA MALTESE Individually, MICHELE M. WOODAR Plaintiffs TRIAL/IAS Par -against- Index No. : 9831/09 Motion Seq. Nos. : 01 & 02 DIAGNOSTIC MEDICAL IMAGING OF L.I. , P. RADIOLOGICAL ASSOCIATES OF LONG ISLAND C. and LUCILLE P. TAVERNA- GIARDINA , M. DECISION AND ORDER Defendants. Papers Read on this Motion: Plaintiffs ' Notice of Motion Defendants ' Affirmation in Opposition Defendants ' Notice of Cross- Motion Plaintiffs ' Reply Affirmation Defendants ' Affirmation in Support Plaintiffs ' Affirmation in Opposition Defendants ' Reply Affirmation In motion sequence number one , the plaintiffs move for an order pursuant to CPLR 3025(b) granting them leave to amend their complaint to interpose a cause of action for wrongful death; an order pursuant to CPLR 3124 precluding the defendants from denying knowledge of the plaintiff decedent's medical history; and , an order pursuant to CPLR 3212 granting them sumar judgment with respect to liability. In motion sequence number two, the defendants cross-move for an order pursuat to CPLR 3212 granting them summar judgment dismissing the complaint against defendants Diagnostic Medical Imaging ofL.I. , P. C. and Lucile Taverna- Giardina, M. The plaintiffs in this action seek to recover damages for inter alia injuries the plaintiff [* 2] decedent allegedly sustained as he was climbing off an e)(amining table at defendant Radiological Associates on February 12 , 2009. John Kar , a radiologist-technician employed by Radiological Associates of Long Island , testified at his e)(amination- before-trial that the plaintiff decedent looked prett unsteady" as he walked down the hall to the e)(amining room but he responded " asked him if he needed help. He furter get up " and he put his left " when he testified that afer the ultrasound , the decedent "was begging to ar under his right armpit as he was "stepping off the step at the bottom of the table at (which) point , he somehow missed the step. " Kar testified that he " stil doesn t know what happened. . . (that he) spun and fell right down on the side of the floor in front of him. " He testified that the plaintiff decedent did not do anything with his body that he knew of. He testified that (b)asically he was halfway getting off the table. I put my hand on him and that' s when he fell. The plaintiffs have advanced causes of action sounding in negligence , failure to supervise manage and train the staff of Radiological Associates, and loss of consortium on behalf of the decedent plaintiffs wife. The plaintiffs allege in their Bil of Pariculars that the plaintiff decedent was not adequately assisted as he dismounted the e)(amining table , paricularly in view of his medical condition. In support of their motion , the defendants maintain that Steven Kar was an employee of the defendant Radiological Associates of Long Island , P. ; that Radiological Associates was not related to the defendant Diagnostic Medical Imaging; and that while defendant Lucile P. Taverna- Giardina, M. is a principal of both of those corporations , standing alone , her relationship with Radiological Associates is an insufficient predicate for personal liabilty. Dr. Taverna- Giardina has not appeared for a deposition. Accordingly, her relationship to Radiological Associates of Long Island as well as the subject incident canot be fairly judged. In fact the plaintiffs claim of failure to supervise , manage and train has not even been addressed. Similarly, ," [* 3] absent Dr. Taverna- Giardina s deposition , the relationship between the two corporations and concomitantly Diagnostic Medical Imaging of L.I. , P . C. ' s lack of potential liability has not been conclusively established , either. CPLR ~3212(f). Based on the foregoing, the defendants ' motion is denied. Contrary to the defendants ' opposition , the wrongful death claim is not untimely. The Statute of Limitations for wrongful death is two years. EPTL 5- 1. . The plaintiff's decedent died on July 24 o 2009. Not only was this action and the Statute of Limitations stayed from the date of death until letters testaentar were procured on October 29 2009 Central General Hospital 51 NY2d 240 (Carrick (Perez (1980)), this motion tolled the Statute of Limitations until its determination Paramount Communications 92 NY2d 749 (1999)) and it was interposed on June 20 2011 , within the two year window. In any event , assuming, arguendo that timeliness was a problem , under the circumstances the proposed claim would relate back to the original filing of the complaint , as " (i)nclusion of the cause for wrongful death wil not significantly e)(pand the scope of proof or the legal considerations on the issue ofliabilty. Caffaro Trayna 35 NY2d 235 241 (1974). (A) plaintiff seeking leave to amend the complaint is not required to establish the merit of the proposed amendment in the first instance. And Lucido in the absence of prejudice or surrise Mancuso 49 AD3d 220 , 226 (2d Dept 2008). " a motion to amend should be denied " only if the new cause of action would not withstand a motion to dismiss under CPLR g3211(a)(7). " The proposed cause of action is not so lacking in merit as. to warant denial of the plaintiffs motion to amend. The plaintiffs ' motion for leave to amend their complaint is granted. The cour notes however that the defendants are clearly entitled to discovery with respect to this new cause of action should they be so inclined. [* 4] The defendants have established that all of the denied. Preclusion pursuant to CPLR 93124 is decedent' s medical records have been produced. The form that the decedent filled out on October 5 2005 which indicated that he suffered from diabetes and high blood pressure has been produced and the records of Februar 1 2006 , July 12 , 2006 , October 9 2006 and Februar 12 2009 all indicate "NC" which defendant Taverna- Giardina has adequately e)(plains means "No Change. Turing to the plaintiffs ' motion for summar judgment. " (o)n a motion for sumar judgment pursuant to CPLR ~3212 , the proponent must make a showing of entitlement to judgment prima facie as a matter of law , tendering suffcient evidence to demonstrate the absence of any material issues of fact." Sheppard-Mobley citing Alvarez King, Prospect Hosp. aff' d. as mod. 4 NY3d 627 (2005), 10 AD3d 70 , 74 (2d Dept 2004), 68 NY2d 320 , 324 (1986); NY2d 851 , 853 (1985). " Failure to make such Winegrad showing requires a denial of the motion primafacie regardless of the suffciency of the opposing papers. Sheppard-Mobley Prospect Hosp" supra; Winegrad New York Univ. Med. Ctr., supra. met , the burden shifts to the opposing par New Yqrk Univ. Med. Ctr. , 64 King, supra at p. 74; Alvarez Once the movant's burden is Alvarez to establish the e)(istence of a material issue of fact. Prospect Hosp., supra at p. 324. The evidence presented by the opponents of summar judgment must be accepted as tre and they must be given the benefit of every reasonable inference. Demishickv Community Housing Management Corp. 34 AD3d 518 See 521 (2d Dept 2006), citing Secofv Greens Condominium 158 AD2d 591 (2d Dept 1990). The plaintiffs have not established their entitlement to sumar judgment. Their e)(pert orthopedist has observed that after the fall and ensuing hip fracture , the decedent's health was compromised and continued to decline until his ultimate demise when " he had acute anemia, acute blood loss and cardio respiratory arest." Then he opines to a reasonable degree of medical certainty that the decedent " would have continued to live for an additional length of time but for the fall and hip [* 5] fracture. " This conclusory statement fails to satisfy the plaintiffs ' burden of establishing causation. Absolutely no details have been provided as to how the hip fractue contributed to his death. Indeed whether principals of medical malpractice or straight forward negligence apply (see, Reardon Presbyterian Hosp. in City of NY 292 AD2d 235 (1 st Dept 2002), citing Hosp. of Buffalo 210 AD2d 966 , 967 (4 1986); see also, DiEUa Menorah Home Dept 1994) and Stanley Hosp. for the Aged SistersofCharity Smee Lebetkin 123 AD2d 854 (2d Dept Infirm 51 AD3d 848 (2d Dept 2008)) issues of fact clearly e)(ist. Nor are the plaintiffs entitled to sumar res ipsa loquitur. judgment based upon a theory of Falls certinly occur absent negligence and the defendants - specifically Mr. Kar - was not in e)(clusive control of the plaintiff decedent when he fell. The plaintiffs ' reliance on New York Thomas University Medical Center 283 AD2d 316 (1 st Dept 2001) is misplaced: The patient in that case was unconscIOus. Based on the foregoing, the plaintiffs ' motion for sumar judgment is denied. It is hereby ORDERED , that the paries are directed to appear for a certification conference on Januar 2012. This constitutes the Decision and Order of the Cour. DATED: December 8 , 2011 Mineola , N. Y. 11501 ENTER: HON. MICHELE M. WOODAR F:\Maltese v Diagnostic Medical MLP. wpd ENTERED DEC 16 2011 08 MAIIAU COUNTY CLIRK" OFFtCE 4

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