Rice v West 37th Group, LLC

Annotate this Case

Download PDF

Rice v West 37th Group, LLC 2012 NY Slip Op 32917(U) December 4, 2012 Sup Ct, New York County Docket Number: 101207/05 Judge: Shlomo S. Hagler 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] l SEQUENCE QUMBER : 011 Notice of Motion/Order to [7 DO NOT POST 0FIDUCIARY A [* 2] COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 17 SUPREME X _ _ _ _ _ _ _ _ _ _ _ I _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ l l KATHLEEN R I C E as Administrator of t h e E s t a t e of JAMES RICE, decedent and KATHLEEN RICE, individually, Plaintiffs, Tndex No 101207/05 -againstWEST 37TH GROUP, LLC, EJF CONSTRUCTION C O R P . d/b/a BUILDERS GROUP and CORD CONTRACTING CO. , i Defendants. I ? WEST 37TH GROUP, LLC, G J F CONSTRUCTION CORP. d / b / a BUILDERS GROUP, Third-party Plaintiffs, Third-party Index No. 590813/05 -againstFIVE BORO ASSOCIATES, WEST 37TH GROUP, LLC, GJF CONSTRUCTION CORP d/b/a BUILDERS GROUP, Second Third-party Plaintiffs, -againstJOSEPH CARFI, M . D . , and BRUCE H E W , PHD., Second Third-party Tndex No. 5 9 0 5 9 2 / 0 8 [* 3] X CORD CONTRACTING CO., INC., Third Third-party Index No. 590611/08 Third Third-party Plaintiff, -againstFIVE BORO ASSOCIATES, INC., WEST 37TH GROUP, LLC, GJF CONSTRUCTION CORP. d/b/a BUILDERS GROUP, Fourth Third-party Plaintiffs, Fourth Third-party Index No. 5 9 0 5 9 8 / 0 9 -against- FIVE BORO ASSOCIATES, Fourth Third-party Defendant. Procedural H i s t o m In this action which originated from a construction site accident, second third-party defendant Joseph Carfi, M.D. ("Dr. Carfi") moves, pursuant to CPLR § 3212, for summary judgment dismissing the second third-party action and all cross- claims. Second third-party defendant Bruce Herman, PhD. Herman") cross-moves f o r the same relief. ("Dr. Plaintiffs and fourth third-party defendant Five Boro Associates, Inc. ("Five Boro") oppose t h e motion and cross-motion. Both the motion and cross- motion are consolidated herein for disposition. -2- [* 4] By stipulation dated November 16, 2011, second thirdparty plaintiffs West 37th Group, LLC, ( West 37th ), GJF Construction C o r p . d/b/a Builders Group ( Builders Group ) discontinued their claims against Dr, Carfi and Dr. Herman, leaving only fourth third-party defendant Five Boro s cross claim for contribution and/or indemnification pending against the doctors. (See, Exhibit A attached to t h e Affirmation o f William T. O Connell, E s q , , dated January 1 3 , 2012, wherein counsel for second third-party plaintiffs acknowledged that the action against the doctors were discontinued without p r e j u d i c e ) . However, Five Boro s cross-claims against Dr. Carfi and Dr. Herman remaln extant as asserted in its fourth third-party answer. ( S e e , Exhibit G to the motion). The cross-claims are viable and stand alone even in face of the discontinuance of the third-party complaint because cross-claims may be asserted against non-parties. (See CPLR 5 3019[d]). As an initial matter, this Court finds that the contention that Dr. Herman s cross-motion is untimely is without merit. The cross-motion was timely made within the 60-day period set forth in this Part s Rules, and within the 120-day period provided by C P L R § 3212(a). In a decision and order dated June 3 0 , 2011 (motion sequence number O l O ) , the Hon. Emily Jane Goodman, J.S.C. denied West 37th and Builders Groups motion for summary judgment -3- [* 5] dismissing plaintiffs wrongful death cause of action against them, on the basis that it could not be said whether decedent s death either was, or was not, a normal, foreseeable consequence of that accident. The court cannot determine, as a matter of law, that Rice s own actions, and/or those of his treating doctors, were an intervening, superseding cause of h i s death, such that [West 37th and Builders Group] would be relieved of liability for his d e a t h (June 30, 2011 Decision and o r d e r , at 12). cross-moved f o r summary judgment dismissing the fourth third- party complaint s causes of action for common-law indemnification 37th and Builders Group] oy Five Boro were, or were n o t , tortf e a s o r s responsible for the causation of Rice s accident, including his d e a t h ( i d . at 13) The First Department affirmed this decision and o r d e r , concluding that the issue of whether the accidental overdose of prescribed pain medication was a foreseeable consequence of the serious injuries suffered by plaintiff s decedent is a question for the trier of fact, and that Five Bora is not entitled to dismissal of [West 37th and Builders Groups ] contribution and indemnity claims on the ground that the decedent did not suffer a g r a v e injury within the meaning of Workers Compensation Law -4- § [* 6] 11 ( R i c e v West 37th Group, LLC, 9 6 AD3d 500, 502 [lst D e p t 20121 1 . The prior motion practice is not dispositive as to the instant motion and cross-motion by the doctors to dismiss the claims of medical malpractice. The prior issues related solely to the viability of plaintiff s wrongful death action and the determination whether or not decedent suffered a grave injury within the meaning of Workers Compensation Law § 11. The issues of medical malpractice are new and have not been decided. Abbreviated Facts The facts of t h i s matter are fully set forth in prior decisions of this Court, familiarity with which is assumed. Briefly, decedent James Rice fell from a ladder and was severely injured, resulting in debilitating pain from the time of his accident to his death two y e a r s later from an accidental overdose of prescription medications. ( S e e , Report of Autopsy attached as Exhibit P to the motion). Dr. Carfi was James Rice s treating, prescribing physician at the time of his death, and Dr. Herman was the decedent s treating psychologist. Summary Judgment The movant under CPLR § 3212 has the initial burden proving entitlement to summary judgment of (Winesrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Once such proof has been o f f e r e d , in order to defend the summary judgment motion, the -5- [* 7] opposing party must show facts sufficient to require a trial of any issue of f a c t . CPLR § 3212(b); Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 (1980); Friends of Animals v Associated Fur M f r s . , 46 NY2d 1065, 416 NYS2d 790 (1979); Freedman v Chemical Construction Corp., 43 NY2d 260, 401 NYS2d 176 (1977); Spearmon v Times Scruare Stores Corp., 96 A D 2 d 552, 465 NYS2d 230 (2d Dept 1 9 8 3 ) . It is incumbent upon a [litigant] who opposes a motion for summary judgment to assemble, lay bare and reveal [his, her, or its] proof, in order to show that t h e matters set up in [the] answer are real and are capable of being established upon a trial. Spearrnon, 96 AD2d at 553 (quoting Sabato v Soffes, 9 AD2d 297, 3 0 1 , 193 NYS2d 184, 189 [lst Dept 19591). If the opposing party fails to submit evidentiary facts to controvert the f a c t s set forth in the movant s papers, the movant s facts may be deemed admitted and summary judgment granted since no triable issue of fact exists. Kuehne & Nasel, Inc. v F.W. Baiden, 36 NY2d 539, 369 NYS2d 6 6 7 (1975). Medical Malgractice The requisite elements of proof in a medical or dental malpractice action are deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage. Priqorac v Park, 20 A D 3 d 363 (1st D e p t 2005). -6- [* 8] Analysis Dr. Carfi In support of the motion, Dr. Carfi submits an affidavit of Elizabeth Spratt, M.S. ("MS. Spratt"), sworn to on October 13, 2011, a practicing toxicologist, who opined that "routine urine testing" would not have detected all of t h e medications that the decedent had been prescribed unless the "doctor" specifically ordered an extended panel which was not common to do so. While Ms. Spratt concluded that routine testing would not have detected certain medications that caused or contributed to decedent's overdose, she never opined if Dr. Carfi should have ordered an extended panel (which would have alerted Dr. Carfi as to all medications the decedent was taking) given the circumstances of decedent's past history and the concerns that were raised by decedent and his w i f e . In other words, Ms. Spratt failed to state that Dr. Carfi did not depart from accepted practice and such departure was not a proximate cause of decedent's death. As such, Dr. Carfi failed to meet his burden of proof for entitlement to summary judgment. Meth v Gorfine, 34 AD3d 267 (1st Dept 2006). Assuming a r g u e n d o that Dr. Carfi had met his burden golng- forward, Five Boro submitted an affirmation of Jonathan R. Moldover, M.D. ("Dr. Moldover"), dated January 9 , 2012, in opposition to Dr. Carfi's motion. -7- In stark contrast, Dr, [* 9] Moldover, a medical d o c t o r specializing in the field of pain management, specifically opined in great detail that Dr. Carfi failed to acknowledge and appreciate the decedent s history o f drug abuse, and failed to order an extended panel of urine testing to monitor t h e decedent s use of narcotic prescription drugs. Dr. Moldover concluded that Dr. Carfi departed from accepted medical practice and such departure was a proximate Cause of decedent s death. Thus, Dr. Moldover s affirmation is sufficient to raise a triable issue o f fact precluding summary judgment. Bell v E l l i s HOSP., 5 0 A D 3 d 1240 (3rd Dept 2008). Dr. Herman In support of the cross-motion, Dr. Herman submits an affidavit of Stephen Honor, Ph.D. ( Dr. Honor ) sworn to on October 24, 2011, who is a forensic psychologist and neuropsychologist. notes. Dr. Honor reviewed all of Dr. Herman s treatment Initially, Dr. Honor states that a licensed psychologist in New York State, such as Dr. Herman, is not permitted to prescribe, or modify, medications. It is uncontroverted that Dr. Herman did not prescribe or modify any of decedent s medications; Dr. Carfi was decedent s primary medication provider and prescriber. Dr. Honor opined that Dr. Herman fully conformed to the standard o f care for a psychologist, did not depart from accepted practice, and did not cause or contribute to decedent s injuries or death. [* 10] Dr. Herman met his burden of proof and Five Boro failed to oppose or rebut this showing by establishing a departure from accepted medical practice which was t h e cause of decedent's injury or death. Ross1 v Arnot Osden Med. Ctr., 268 A D 2 d 916 (3rd D e p t 2000), Iv. d e n i e d 9 5 NY2d 751 (2000). Unlike the opposition f o r Dr. Carfi, Five Boro did not submit expert medical evidence to establish a triable issue of fact. Giambona v Stein, 265 AD2d 775 (3rd Dept 1999). Conclusion Accordingly, it is ORDERED, that t h e motion of Joseph Carfi, M.D. pursuant to CPLR $3212, f o r summary judgment dismissing the cross-claims of Five Boro Associates, Inc. is denied; and it is ORDERED, that the cross-motion of Bruce Herman, PhD. for summary judgment dismissing the cross-claims of Five Boro Associates, Inc. is granted. The foregoing cons ision and order of the i Court. DEC 07 2012 Dated: New York, New York December 4 , 2012 Hon. Shlomo S. Hakler, J. S. C. -9-

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.