Tolkoff v Goldstein

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Tolkoff v Goldstein 2015 NY Slip Op 32212(U) November 18, 2015 Supreme Court, Suffolk County Docket Number: 06-11319 Judge: Daniel Martin 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] INDEX No. 06-11319 SUPREME COURT - STATE Of NEW YORK l.A.S. PART 9 - SUFFOLK COUNTY PRESENT: Hon. -----""'-'-A=-N= .:..:..M=AR=""-'T=IN"-'----D IE~.I=-, ---------------------------------------------------------------)( DONNA TOLKOFF, as Administratrix of the Estate of JAYMEE TOLKOFF, Plaintiff, MOTION Di\TE MOTION DATE MOTTON DATE MOTION DATE 12-1-14 (004. 005. O11) 12-8-14 (006, 007. 008) 12-16-1 4 (009. 010) 2-2-15 C01 2) ADJ. DATE - --"5'-'-2=2_,-1-=-5_ _ _ __ Mot. Seq. #004- MG; C/\SEDISP #005- MG #009- MG #006- MG #O J 0- MG #007- MG #01 1- MG #008- MG #012- MD NAPOLI, BERN & RIPKA, LLP Attorney for Plaintiff 350 Fifth Avenue, Suite 74 13 New York, New York 10118 FUMUSO, KELLY, DeVERNA, SNYDER, SWART & FARRELL, LLP Attorney for Margaret M. Goldstein 110 Marcus Boulevard Hauppauge, New York 11788 - against - MARGARET M. GOLDSTETN, as Administratrix of the Estate of DAVID GOLDSTETN, M.D., JAGPREET DHILLON, M.D .. LONG ISLAND DIAGNOSTIC IMAGING, JOHN T. MATHER MEMORIAL HOSPITAL, DIMITRI PYRROS, M.D., ZELE & PYRROS, M.D., P.C., NORTH SHORE PULMONARY ASSOCIATES, JAY M. BARBAKOFF, M.D., WALTER SZCUPAK, MO., ANTHONY C. TIIEODORIS, M.D., and LONG ISLAND MEDICAL IMAGING, Defendant. ---------------------------------------------------------------)( SANTANGELO, BENVENUTO & SLATTERY Attorney for Jagpreet Dhillon, M.D. 1800 Northern Boulevard Roslyn, New York 11576 HELWIG, HENDERSON, RYAN & SPINOLA Attorney for Long Island Diagnostic Imaging One Old Country Road. Suite 428 Carle Place, New York 11 514 LEWIS JOHS AVALLONE & AVILES, LLP Attorney fo r John T. Mather Memorial Hospital One CA Plaza, Suite 225 Islandia, New York 11749 [* 2] Tolkoff v Goldstein Index No. 06- 113 l 9 Page No. 2 Upon the fo llowing pupcrs numbered l to _2L read on these motions to dismiss.'cxtend time ; Notice ofMotion/ Order to Show Cause and supporting papers 1 -9, l 8- 27, 28-33, 34-42, 55-65 ; Notice of Cross Motion and supporting papersJ..Q:.!1., 43-54, 66-70, 71 -82; Answering Affidavits and supporting papers 83- 84 , 85-86. 87-88, 89-90; Replying Affidavits and supporting papers 9 l-92, 93-94; Other_; (1:111d after hc:ar ing C()tmsel in st:rppor t and oppo~ed to thc: motion) it is, ORDERED that these motions are consolidated for the purposes of this determination; and it is further ORDERED that the motion by defendant Margaret Goldstein, as administratrix of the estate o f' Jaymee Tolkoff ("Goldstein") for an order pursuant to CPLR §3124 and §3126 dismissing the complaint in its entirety for plaintiffs fa ilure to comply with an order of this Court is granted; and it is further ORDERED that the cross motion by defendants North Shore Pulmonary Associates, Walter Szczupak, M.D, and Anthony C. Theodoris, M.D., for an orddr pursuant to §3 126 dismissing the compla int in its entirety for plaintiffs failure to comply with a~. order of this Court is granted; and it is further ORDERED that the motion by defendant Jagpreet Dhil~n, M.D., for an order pursuant to CPLR §3124 and §3126 dismissing the complaint in its entirety for failure to comply with an order of this Court is granted; and it is further ORDERED that the motion by defendant Jay M. Barbakoff, M.D.. for an order pursuant to CPLR §3 124 and §3 126 dismissing the complaint in ils entirety for failure to comply with an order of this Court is granted; and it is further ORDERED that the motion by defendants Dimitri Pyrros, M.D, and Zelen & Pyrros, M .D .. P.C., f'or an order pursuant to CPLR §3124 and §3126 dismissing the complaint. in its entirety for lack of prosecution is granted; and it is further ORDERED that the cross motion by defendant Long Island Diagnostic Imaging for an order pursuant to CPLR §3 124 and §3 126 dismissing the complaint in its entirety for failure to comply with an order of this Court is granted; and it is further ORDERED that the motion by defendant John T. Mather Memorial Hospital, Inc. for an order pursuant to CPLR §3 124 and §3126 dismissing the complaint in its entirety for failure to comply with an order of this Court is granted; and it is further ORDERED that the cross motion by defendant Long Island Medical Imaging, P.C., s/h/a Long Island Medical Imaging. for an order pursuant to CPLR §3 124 and §3 126 dismissing the complaint in its entirety for failure to comply with an order of this Court is granted; and it is further [* 3] Tolkoff v Goldstein Index No. 06-11319 Page No. 3 ORDERED that the cross motion by plaintiff for an order pw-suant to §2004 extending plaintif'r s time to file a note of issue until thirty (30) days following the notice of entry of the order addressing thi s cross motion is denied. Plaintiff commenced this action by service of a summons and verified complaint in April of 2006, seeking to recover damages for medical malpractice and alleging that the various defendants failed to timely diagnose and treat an unspecified cancer. Less than a month later, the plaintiff passed away, allegedly from a type oflung cancer. All proceedings were then stayed until a representative for the estate of the deceased was appointed. Following the appointment of an administratrix for the estate, an ame nded verified complaint was served dated May of 2008. The action was then fu rther stayed by the death of defendant David Goldstein, M.D. After a representative for his estate was appointed, plaintiff served a second amended verified complaint. After extensive discovery was completed, a compliance conference was held on July 17, 2012, after which this Court issued a certification order, dated July 17, 2012, directing the plaintiff to serve a note of issue within 90 days. Plaintiff failed to serve a note within the 90 day period, allegedly due to a law office calendaring oversight. Plaintiff thereafter circulated a stipulation extending the time to file the note of issue until December 5, 2012. The stipulation was so-ordered by this Court on February 8, 2013. Plaintiff still did not file the note of issue, but rather sought a second time to obtain a stipulation extending the time to file, which the other parties herein declined to sign. Plaintiff thereafter requested a conference with this Court, which was held on December 10, 2013. It is undisputed that at the conference, the Court declined plaintiffs request for permission to file the note of issue. Instead, the Court orally directed the plaintiff to make a written motion seeking permission to fi le and serve a late note of issue. Plaintiff was required to make a showing of a meritorious cause of action and a reasonable excuse for the delay in timely Ii Iing the note of issue. Eleven months then passed without plaintiff making the required motion, at which time the first of the defendants' motions to dismiss was served and filed. In fact, it was not until all of the defendants had moved for dismissal that the plaintiff made a cross motion to serve a late notice of claim. Plaintiff, to avoid dismissal, was required to demonstrate a justifiable excuse for the delay as well as a potentially meritorious cause of action (see CPLR §2004; CPLR §3126; Bisclzoffv Hoffman , I 12 AD3d 659, 976 NYS2d 406 (2d Dept 2013); Furrukli v Forest Hills Hosp., 107 AD3d 668, 966 NYS2d 497 [2d Dept 20131; Jedraszak v County of Westchester, 102 AD3d 924, 958 NYS2d 490 [2d Dept 2013J; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503, 655 NYS2d 848 [1997J). The Court has broad discretion to grant appropriate relief (see Raczkowski v Colli11s Constr. Co., supra). Conclusory and unsubstantiated claims of law office fai lure do not rise to the level of a reasonable excuse (see Petersen v Lysaght, Lysaght & Kramer, P.C. , 47 AD3d at 784, 851 NYS2d 209 l2d Dept 2008]: Matter of Bloom v Lubow, 45 AD3d 680, 845 NYS2d 439 [2d Dept 2008J; Lugauer v Forest City Rat11er Co. , 44 AD3d 829, 830, 843 NYS2d 456 f2d Dept 20071; Stallone v Richard, 95 AD3d at 876, 943 NYS2d 225 r2d Dept 2013]; Byers v Winthrop Univ. Hosp. , 100 AD3d 817, 819, 955 NYS2d 105 [2d Dept 2012]). Here, plaintiff has failed to provide either a justifiable excuse for the delay or proof of a meritorious cause of action. Plainti ffs reliance on Hilliard v Higliland Hosp. , 88 AD3d 1291, 930 NYS2d 390 [4th Depl 2011], is without merit and misplaced. That matter involved an order [* 4] Tolkoff v Goldstein index No. 06-11319 Page No. 4 that did not advise the plaintiff of the consequences of his fai lure to file a note of issue. Herein, the plainti ff was directed by this Court to make a written motion seeking permission to file and serve a late notice of issue. A natural consequence of the denial of such motion would be the dismissal of the complaint. Thus, plaintiff cannot claim to be unaware that dismissal was a possibility. Furthermore, plaintiff, as already noted, in addition to being dilatory by waiting more than a year to make the directed motion, has ignored the Court's instructions and utterly failed to provide either a justifiable excuse for the delays or any proof of a meritorious cause of action. Plaintiff having failed to establish a justifiable excuse for her failure to timely file a note of issue and a meritorious cause of action, the motion to extend plaintiff's fone to file a late note of issue is denied (see Furruk/J v .Forest Hills Hosp., supra; Umeze v Fide/is Care N. Y., 17 NY3d 751, 929 NYS2d 67 [20111). Accordingly, each of the defendants' motions to dismiss are granted in all respects. _X_ FlNAL DISPOSITION [* 5] Tolkoff v Goldstein Index No. 06-11319 Page No. 5 KRAL, CLERKfN, REDMOND, RYAN, PERRY & VAN ETTEN, LLP Anorneys for Dimitri Pyrros, M.D. 538 Broadhollow Road, Suite m200 Melville, New York 11747 GABRIELE & MARANO, LLP Attorneys for North Shore Pulmonary Associates Walter Szczupak, M.D. & Anthony C. Theodoris, M .D. l 00 Quentin Roosevelt Bovd. P.O. Box 8022 Garden City, New York 11530 ALBANESE & ALBANESE LLP Attorneys for Jay M. Barbakoff, M.D. 1050 Franklin Avenue Garden City, New York 11530 WAGNER, DOMAN & LETO, P.C. Attorneys for Long Island Medical Imaging 227 Mineola Blvd. Mineola, NY 11501

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