Darko v Guerrino

Annotate this Case

Download PDF

Darko v Guerrino 2018 NY Slip Op 33507(U) January 18, 2018 Supreme Court, Westchester County Docket Number: 66554/2016 Judge: Lawrence H. Ecker Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] WESTCHESTER COUNTY CLERK 01/19/2018 10:51 AM NYSCEF DOC. NO. 148 INDEX NO. 66554/2016 RECEIVED NYSCEF: 01/18/2018 To commence the statutory time for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER . --------------------------------------------------------------~~-----------)( ALBERTA DARKO, INDEX NO. 66554/2016 Plaintiff, DECISION/ORDER -againstGARY C. GUERRINO, M.D., GREGORY STANLEY, M.D., ERIN MURPHY, M.D., LAWRENCE MEDICAL ASSOCIATES, P.C. and NEW YORK-PRESBYTERIAN HOSPITAL-COLUMBIA MEDICAL CENTER, Motion Seq. 3 Submitted: 11/1/17 ( . Defendants. ----------------------------------------------------------~----------------)( ECKER, J. The following papers numbered 1 through 17 were read on the motion of ALBERTA DARKO ("plaintiff'), made pursuant to CPLR S 602(a) and 602(b), fo(an order consolidating for trial this captioned action, with a prior action presently pending in this court, entitled ALBERTO DARKO v. RALPH J. D'ANGELO, M.D. and LAWRENCE HOSPITAL, Index No. 70565/2015: NUMBERED PAPERS Notice of Motion, Affirmation, Exhibits A-I 1 Affirmation in Opposition [Guerrino] Affirmation in Opposition [all other defendants] Reply Affirmation, Exhibits A-B 1 - 12 13 14 15-17 Upon the foregoing papers, the court determines as follows: 1 Plaintiff's attorneys were previously advised in footnote 1 to this court's Decision/Order of June 26, 2017 that the court requires plaintiff to use numbered exhibit tabs, and not to repeat the same number (or in this case letter) within the same motion sequence. -1- 1 of 5 [*FILED: 2] WESTCHESTER COUNTY CLERK 01/19/2018 10:51 AM NYSCEF DOC. NO. 148 INDEX NO. 66554/2016 RECEIVED NYSCEF: 01/18/2018 In this medical malpractice/lack of informed consent action, plaintiff alleges she sustained physical injuries relating to a fall that apparently caused a piece of glass to become embedded in her leg. Specifically, on Jun~ 1, 2014, plaintiff cut her leg and went to the emergency room/department at defendant Lawrence Hospital2 ("the Hospital"). She was evaluated by defendant Dr. Ralph J. D'Angelo and received stitches. Two days later, on June 3, 2014, plaintiff returned to the Hospital for further treatment [Reply Ex. A]. Thereafter, on June 9, 2014, plaintiff went to her primary care physician (defendant Dr. Gary C. Guerrino) at defendant Lawrence Medical Associates, P.C. located in Mount Vernon, New York ("the Physician's Office "). The doctor removed the sutures. Plaintiff thereafter returned to the Physician's Office two more times in June 2014. [Rely Ex. B]. Plaintiff alleges that, during this time, she was also treated by defendants Dr. Erin Murphy and Dr. Gregory Stanley and, in the complaint, asserts that these doctors served as agents of defendant New York Presbyterian/ Columbia University Medical Center [Plff Notice of Motion Ex. A, Complaint 111116, 25; Reply Affirmation p.3 ]. Several weeks later, on July 13, 2017, plaintiff again presented at the Hospital's emergency room complaining of leg pain. This time a piece of glass was discovered in plaintiffs leg and was removed. On August 1,2017, plaintiff returned to the Physician's Office where the physician note reflects that a piece of glass had been removed from plaintiff's leg [Reply Ex. A & B]. On December 15, 2015, plaintiff commenced an action against the Hospital and Dr. D'Angelo based on the treatment that she received for the leg injury (Index No. 70565/15 ) ("Action 1"). Discovery, including four examinations before trial, was completed. The action was marked ready for trial on August 17, 2017, and the Note of Issue/Jury Demand was filed on August 29,2017. Plaintiff commenced a second action on November 2, 2016, against the Physician's Office, New York Presbyterian/ Columbia University Medical Center3, Gary C. Guerrino, M.D., Gregory Stanley, M.D. and Erin Murphy, M.D. alleging that they also committed medical malpractice while treating plaintiff's leg injury (Index No. 66554/2016) ("Action 2"). This later action is under the supervision of the Compliance Part of the Court, with the next conference scheduled for January 30, 2018. On October 11, 2017, plaintiff brought the present motion to consolidate Action 1 and 2 In support of the motion plaintiff submits medical records from defendant Lawrence Hospital and defendant Lawrence Medical Associates P.C. as Reply Exhibit A and B respectively. 3The court takes judicial notice of Lawrence Hospital being a subsidiary or affiliate . of New York Presbyterian/Columbia University Medical Center, a fact well known to the general public in Westchester County. -2- 2 of 5 [*FILED: 3] WESTCHESTER COUNTY CLERK 01/19/2018 10:51 AM NYSCEF DOC. NO. 148 INDEX NO. 66554/2016 RECEIVED NYSCEF: 01/18/2018 Action 2. The application is opposed by the defendants named in Action 2. In the motion, plaintiff advises the court that the depositions taken in the Action 1 litigation have been exchanged with all parties in both actions; that most, if not all, of the medical records made available in the first action are the same needed for the second litigation, or if not, have already been exchanged (given the court's review of the notes in NYSCEF); and that depositions of additional parties or witnesses are ongoing. A motion to consolidate pending actions is addressed to the sound discretion of the trial court, and consolidation is favored by the courts in serving the interests of justice and judicial economy. (See, CPLR 9 602(a); Lecorps v Bromberg, 127 AD3d 931 (2d Dept 2015». Where there is a common question of law or fact, and in the absence of a showing of prejudice to a substantial right to the party opposing the motion, the motion to consolidate should be granted (Moses vB & E Lorge Family Trust, 147 AD 3d 1043 (2d Dept 2017); Obuku v New York City Transit Authority, 141 AD3d 708 (2d Dept 2016». Further, consolidation is appropriate where it will avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent injustice which would result from divergent decisions based on the same facts (Moses vB & E Lorge Family Trust, supra). Here, the court finds that it is well within its discretion in granting plaintiff's motion. At their very core, both actions spring from the alleged failure of all of the defendants to appreciate that a piece of glass remained embedded in plaintiff's leg for over a month, despite numerous hospital and doctor visits during which plaintiff complained of leg pain and other relevant symptoms. From the medical records submitted by plaintiff, and a reading of the two complaints, the alleged a.cts of medical malpractice were committed by physicians affiliated with the Physician's Office and the Hospital. The course of conduct that plaintiff alleges led to her injury, caused by the physicians and the hospitals she has now sues, occurred during the limited time frame of June 1, 2014 through August 1, 2014, and all relate to the leg injury. Furthermore, defendants' argument that there will be undue delay caused by the granting of the motion because Action 1 is marked "trial ready" is unconvincing. Plaintiff has offered to withdraw the Note of Issue in the first action, which is authorized, to keep these two cases together from the date hereof. Of note, defendants fail to set forth any specific unreasonable delay that would result from the consolidation. As a practical matter, it takes approximately 9 months from the filing of the Note of Issue to the actual trial date, and there is often delay in medical malpractice actions, due to the difficulty in arranging for the parties' experts. Moreover, defendants' claim that the consolidation will lead to jury confusion is speculative. The careful and assiduous efforts of the attorneys and the court in the presentation of the case, the charge to the jury and the verdict sheet will alleviate that possibility. Under the circumstances the Court finds that it is well within its discretion in granting plaintiff's motion. -3- 3 of 5 [*FILED: 4] WESTCHESTER COUNTY CLERK 01/19/2018 10:51 AM NYSCEF DOC. NO. 148 INDEX NO. 66554/2016 RECEIVED NYSCEF: 01/18/2018 The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any~relief requested by either party was not addressed by the court, it is hereby denied. Accordingly, it is hereby \ ORDERED that the motion of ALBERTA DARKO, made pursuant to CPLR S 602(a), for consolidation of this action with the action e-ntitled ALBERTO DARKO v RALPH J. D'ANGELO, M.D. v LAWRENCE HOSPITAL, Index No. 70565/2015, is granted, such that the caption of the matter shall be amended to read ALBERTO DARKO, Plaintiff against GARY C. GUERRINO, M.D., GREGORY STANLEY, M.D., ERIN MURPHY, M.D., LAWRENCE MEDICAL ASSOCIATES, P;C., NEW YORK-PRESBYTERIAN/COLUMBIA UNIVERSITY MEDICAL GENTER, RALPH J. D'ANGELO, M.D. and LAWRENCE . HOSPITAL, Defendants, Index No. 70565/2015; and it is further ORDERED that the Note of Issue/Statement No. 70565/2015 is hereby vacated; and it is further of Readiness filed under Index ORDERED that the parties shall appear atthe Compliance Part at 9:30 a.m. on January 30,2018. . Th~foregoing constitutes the Decision/Order Dated: White Plains, New York January ,2018 IE APPEARANCES Tantleff & Kreinces, LLP Attorneys for Plaintiff ;, Via NYSCEF Benvenuteo & Slattery Attorneys for Defendant Gary C. Guerrino, M.D. Via NYSCEF -4- 4 of 5 of the court. [*FILED: 5] WESTCHESTER COUNTY CLERK 01/19/2018 10:51 AM NYSCEF DOC. NO. 148 INDEX NO. 66554/2016 RECEIVED NYSCEF: 01/18/2018 Heidell Pittoni Murphy & Bach, LLP Attorneys for Gregory Stanley, M.D., Erin Murphy, MD., Lawrence Medical Associates, P.C. and New YorkPresbyterian/Columbia University Medical Center, Defendants Pilkington & Leggett, P.C. Attorneys for Ralph J. D'Angelo, M.D. and Lawrence Hospital, Defendants ., -5- 5 of 5

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.