Francione-Nicacci v Winthrop Univ. Hosp.

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Francione-Nicacci v Winthrop Univ. Hosp. 2018 NY Slip Op 34405(U) April 26, 2018 Supreme Court, Nassau County Docket Number: Index No. 605015/15 Judge: James P. McCormack 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: ---------NASSAU COUNTY CLERK INDEX NO. 605015/2015 04/30/2018 10:34 AM NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 04/30/2018 Short Short Form Form Order Order SUPREME NEW YORK YORK SUPREME COURT COURT - STATE STATE OF OF NEW PRESENT: PRESENT: Honorable Honorable James James P. McCormack McCormack Justice of the Supreme Justice of the Supreme Court Court _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _xx ----------------- TRIALflAS, TRIALIIAS, PART23 PART 23 NASSAU COUNTY NASSAU COUNTY TERESA FRANCIONE-NICACCI, as TERESA FRANCIONE-NICACCI, Administrator Estate of MARY Administrator of the the Estate MARY FRANCIONE, deceased, FRANCIONE, deceased, Index Index No. 605015/15 605015/15 Plaintiff(s), Plaintiff(s), Motion 001 & 002 Motion Seq. No.: Motions Submitted: 3/14/18 Motions Submitted: -against-against- WINTHROP WINTHROP UNIVERSITY UNIVERSITY HOSPITAL, HOSPITAL, TOWNHOUSE CENTER CENTER FOR FOR TOWNHOUSE REHABILITATION REHABILITATION AND NURSING, NURSING, TOWNHOUSE OPERATING OPERATING COMPANY, COMPANY, TOWNHOUSE LLC., CENTRAL ISLAND LLC., CENTRAL ISLAND HEALTHCARE HEALTHCARE LLC, AND OZONE OZONE ACQUISITION, ACQUISITION, LLC, Defendant(s). Defendant(s). _________________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ xx ;, i The following following papers motion: papers read read on this motion: Notices of Motion/Supporting Motion/Supporting Exhibits Exhibits ........................xX Notices of XX Affirmation in Opposition Opposition ........... _. .................................x Affirmation X [* 1] 1 of 4 FILED: NASSAU COUNTY CLERK 04/30/2018 10:34 AM NYSCEF DOC. NO. 67 INDEX NO. 605015/2015 RECEIVED NYSCEF: 04/30/2018 Defendants, Central Island Island Healthcare Ozone Acquisition, Defendants, Central Healthcare (CIH) (CIH) and Ozone Acquisition, LLC. LLC. (Ozone), move court for an order (Motion Seq. 001) pursuant 93212 for CPLR §3212 (Ozone), move this court order (Motion pursuant to CPLR summary judgment against them. Ozone further summary judgment dismissing dismissing the complaint complaint against them. CIH and Ozone further move move for an order pursuant CPLR stipulation order (Motion (Motion Seq. 002) pursuant CPLR § 9 3217(b), 3217(b), "So "So Ordering" Ordering" a stipulation entered into by Plaintiff, of the Estate Estate entered Plaintiff, Teresa Teresa Francione-Niacci Francione-Niacci (Teresa), (Teresa), as Administrator Administrator of of Francione (Mary), deceased, discontinuing CIH and Ozone. Ozone. of Mary Francione (Mary), deceased, discontinuing the action action against against CIH judgment motion. motion. Defendant, Defendant, Winthrop Winthrop There There is no opposition opposition to the summary summary judgment University (Winthrop), partially opposes the CPLR CPLR § 9 3217(b) University Hospital Hospital (Winthrop), partially opposes 32 l 7(b) motion. motion. Neither Neither Defendants oppose 7(b) motion. motion. As a Plaintiff Plaintiff nor any of of the other other Defendants oppose the CPLR CPLR §321 93217(b) decision regarding "so-ordered" stipulation decision regarding the the "so-ordered" stipulation may render render the the summary summary judgment judgment motion motion moot, the court court will address Motion will address Motion Seq. 002 first. Plaintiff commenced this medical action by summons summons and complaint complaint Plaintiff commenced medical malpractice malpractice action 2015. Issue answer by Winthrop dated July 31, 2015. Issue was joined joined by service service of of an answer Winthrop dated dated August August 31,2015. Townhouse Center Center for Rehabilitation 31, 2015. Defendants Defendants Townhouse Rehabilitation and Nursing Nursing and Townhouse Townhouse Operating Company, Company, LLC answer dated September September 2,2015. Operating LLC interposed interposed an answer 2, 2015. CIH CIH and Ozone submitted submitted an answer dated October certified ready Ozone answer dated October 20, 2015. 2015. The The case case certified ready for trial on June 29, 2017, 2017, and a note of issue was filed on August of issue August 7, 2017. 2017. executed a Stipulation Stipulation of of Discontinuance 2018, Plaintiffs Plaintiffs counsel counsel executed Discontinuance On January January 3, 2018, with prejudice CIH and Ozone. Ozone. CIH and Ozone's counsel requested counsel for prejudice as to CIH Ozone's counsel requested that that counsel the remaining co-Defendants, sign the Stipulation Stipulation of of Discontinuance, Discontinuance, and they they refused. refused. remaining co-Defendants, have not interposed cross-claims cross-claims against against CIH anmd anmd Ozone. Ozone. The remaining remaining Defendants Defendants have not interposed determination of of a motion leave to voluntarily discontinue an action action The determination motion for leave voluntarily discontinue 2 [* 2] 2 of 4 INDEX NO. 605015/2015 FILED: NASSAU COUNTY CLERK 04/30/2018 10:34 AM i· NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 04/30/2018 pursuant CPLR §S 3217(b), 3217(b), rests within sound discretion discretion of of the court court (see Tucker Tucker v. v. pursuant to CPLR within the sound Tucker, NY2d NY2d 378, 383 [1982]). [1982]). In absence absence of of special special circumstances, circumstances, such such as prejudice prejudice to a substantial substantial right right of of the defendant, or other other consequences, consequences, a motion the defendant, motion for voluntary voluntary discontinuance should should be granted granted (see Tucker Tucker v. Tucker, 55 NY2d [1982]; Expedite discontinuance v. Tucker, NY2d 378 [1982]; Expedite nd Dept. Video Conferencing Conferencing Services, Dept. 2009]). 2009]). v. Botello, Botello, 67 AD3d AD3d 961 [2nd Services, Inc. v. Herein, opposes the discontinuance discontinuance to the extent that statutory Herein, Winthrop Winthrop opposes the extent that their their statutory would be impacted. impacted. The The court, court, having having reviewed stipulation, sees no prejudice rights would reviewed the stipulation, prejudice However, by so-ordering so-ordering the st~pulation stipulation the court court does not intend intend to impact impact to Winthrop. Winthrop. However, of the remaining Defendants, and to the extent extent that impact their remaining Defendants, that it can be read read to impact their the rights rights of rights, those portions portions of rights, those of the stipulation stipulation may be disregarded. disregarded. Should Should a subsequent subsequent court court conflict between between this order order and the stipulation stipulation of of discontinuance, discontinuance, this order shall find a conflict this order prevail. There being showing of of prejudice special circumstances, circumstances, CIH CIH and Ozone's Ozone's prevail. There being no showing prejudice or special motion pursuant pursuant to CPLR CPLR 3217(b) 3217(b) will be granted granted (see Citibank Citibank v. v. Nagrotsky, AD2d motion Nagrotsky, 239 AD2d 456 [2 ndnd Dept. Dept. 1997]). Accordingly, hereby Accordingly, it is hereby ORDERED, that ClH and Ozone's Ozone's motion (Motion Seq. 002) 002) pursuant CPLR ORDERED, that CIH motion (Motion pursuant to CPLR §321 ?(b) to so-order the action S3217(b) so-order a stipulation stipulation discontinuing discontinuing the action against against CIH CIH and Ozone Ozone is GRANTED; and it is further further GRANTED; ORDERED, that CIH motion for summary judgment (Motion ORDERED, that CIH and and Ozone's Ozone's motion summary judgment (Motion Seq. 001) is DENIED moot. DENIED as moot. Further, Further, the caption caption should should be amended amended as follows: follows: 3 [* 3] 3 of 4 INDEX NO. 605015/2015 FILED: NASSAU COUNTY CLERK 04/30/2018 10:34 AM ,..NYSCEF DOC. NO. 67 .f • RECEIVED NYSCEF: 04/30/2018 ___________________ - - - - - - - - - - - - - - - - ~ xx - TERESA FRANCION FRANCIONE-NICACCI, E-NICACCI , as TERESA Administrator r of the the Estate Estate of Administrato FRANCIONE, deceased, E, deceased, MARY FRANCION Index No. Index 605015/15 605015/15 Plaintiff(s),), Plaintiff(s -against-againstWINTHROP P UNIVERSI UNIVERSITY HOSPITAL, , TY HOSPITAL WINTHRO TOWNHOUSESE CENTER CENTER FOR FOR TOWNHOU REHABILITATION NURSING, and and AND NURSING, TATION AND REHABILI , LLC., TOWNHOUSE OPERATING COMPANY, LLC., COMPANY G TOWNHOU SE OPERATIN Defendant(s). ). Defendant(s _ _ _ _ _ _x _ _ _ _ _ _ ___________________ _ _ _ _ _ _ constitutes the the Decision Decision and Order Order of of this Court. Court. This constitutes Dated: April April 26, 2018 2018 Dated: Mineola, N. N.Y. Y. Mineola, ENTERED RED ENTE 300 2018 2018 APR 3 NASSAU COUNTY COUNTY NASSAU COUNTY CLERK'S CLERK'S OFFICE OFFICE COUNTY 4 [* 4] 4 of 4

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