Thomas v Stern

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Thomas v Stern 2020 NY Slip Op 35507(U) February 5, 2020 Supreme Court, Bronx County Docket Number: Index No. 33753/2018E Judge: George J. Silver 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: BRONX COUNTY CLERK 02/10/2020 12:44 PM NYSCEF DOC. NO. 49 INDEX NO. 33753/2018E RECEIVED NYSCEF: 02/10/2020 Index _\i2. 33753/2.018E SUPREME COURT OF THE STATE OF N EW YORK COUNTY OF BRONX PART 19A -------------------------------------------------------------------X Ind ex .N'!!. 33753/2018E TINA THOMAS Plaintiff -againstJOSH UA M. STERN, M.D., SAMAN MOAZAMI, M.D., ELILARY MONTILLA MEDRANO, M.D., NANCY LEE, M.D. , and MONT EFIORE M EDICA L CENT ER Defendants -------------------------------------------------------------------X HON. GEORGE J. SILVE R: In this medical malpractice action , defendants JO S HUA M. STERN, M.D.. AM A MOAZAMI, M .D. ("' Dr. M oazami .. ), E LILA RY MO T ILLA M EDRAN O. M .D. ("Dr. Medrano''), ANCY LEE, M.D. c-·Dr. Lee" ). and MONT EFIORE M EDICA L CENT ER (.. Mo ntefiore '') (coll ecti ve ly --defend ants") move, pursuant to C PLR §§3042. 3 124. 3 126. fo r an order precluding plaint iff TT A THOM AS ("'pl aintiff') from o ffering any evidence at the time of tri al to support claims fo r which particul ars have been demanded , but have not been served. In the alternative, de fendant s seek to di smi ss pl ainti ffs compla int or an o rd er from the court compelling plaintiff to provide bill s of particulars with suffi cient detail to allow defendants, in parti cular Dr. Stern and Dr. Moazami , to competentl y de fend themsel ves at fo 11hcoming depositions. T he compl aint in this acti on broadl y alleges medi ca l malpractice re lated to the admini stration of anesthes ia during an intubati on of plaintiff s mo uth pri or to surgery . No tably. the injuries alleged in plaintiff s bill s of part icu lars relate to the "mouth and j aw.. fo llowing an '•intraoral lacerati on during intubation fo r surge ry ... Notwithstanding these all egati ons, pl ainti ff also a ll eges un specified malpractice against two de fe ndants, Dr. Stern and Dr. Moazami . w ho are uro logic surgeons. Pl aintiff s a llegations aga inst Dr. Stem and Dr. Moaza mi are being adva nced even tho ugh neither physician participated in the intubati o n prior to pl ainti ffs surgery. At ora l argument plaintiffs co unse l ad vanced the argument th at Dr. Stem and Dr. Moazami ··supervised·· the anesthes io log ists during pl aintiff s intubation. and therefo re were the -- masterminds" behind the all eged ly botched procedure that res ulted in plaintiff s inj uries. Plaintiffs co unsel also arg ues that this is a res ipsa loquitor case. even though the injuries all eged do not correspond to areas where Dr. Stem and Dr. Moazami perfo1med surge ry on pl ainti ff. CPLR §3042(d) provides .. [i] f a party served with a demand fo r a bill of partic ul ars wi llfull y fa il s to provide pani cul ars w hi ch the court find s o ug ht to have been prov ided pursuant to -2- [* 1] 2 of 4 FILED: BRONX COUNTY CLERK 02/10/2020 12:44 PM NYSCEF DOC. NO. 49 INDEX NO. 33753/2018E RECEIVED NYSCEF: 02/10/2020 Index X2. 33753 / 20181:: this rule, the court may make such final or conditional order with regard to the failure or refusal as is just, including such relief as is set forth in [CPLR §3126j."' llowever, .. [b]efore the sanction of preclusion is granted or a pleading stricken, a showing of ·willful or contumacious conduct" is necessary" (Kovacs ,, Castle Restoration and Const., Inc .. 262 AD2d 165 , 166 [1st Dept 1999]; see also Hassan v Manhattan and Bronx Swface Transir Operating Auth .. 286 AD2d 303 , 304 [1st Dept 2001] [striking of plaintiffs pleading should be impo ed only where ··the party ceking disclosure demonstrates conclusively that the failure was willfuL contumacious or due to bad faith'"]). Although defendants seek. among other things. to compel .. full and proper .. responses to their demands for bills of particulars under CPLR §3124. the proper procedure is to move to compel compliance under CPLR §3042(c). The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial (Miccarelli ,, Fleiss. 219 AD2d 469, 470 l l st Dept 1995]). Thus. the responses to a demand for a bill must ··clearly detail the specific acts of negligence attributed to each defendant'" (id.) . .. A response to a demand that is vague. nonspecific and opened-end fails to satisfy the purpose of a bill particulars·· (Al\'Clrado ,, Ne w York City Hous. Auth. , 302 AD2d 264. 265 [1st Dept 2003]) . If a plaintiff lacks present knowledge relevant information requested by the demand. plaintiff ··should be a responsive as possible, stating [his or her] inability to respond if such is the case. and upon acquiring the information after disclosure, serving a supplemental bill of particulars .. (Miccare/li. 219 AD2d at 470. supra) . However. "•[i]t need not set forth a matter that is evidentiaiy in nature. which is more appropriatel y obtained through depositions and expert disclosure"' (Harris r Ariel Tramportation Corp ., 37 AD3d 308. 309 [1st Dept 2007]; hut see. Twiddy I' Standard Marine Tran.sport at ion Services, Inc .. 162 AD2d 264. 265 (1st Dept 1990] [noting, .. [w]hile a bill of particulars is not an evidenceproducing device. the rule is not an inflexible one··j). or or In Twiddy, the Appellate Division. First Department, determined that the information sought by a demand for a verified bill of paiticulars was ••indisputably infom1ation which nonnally would be obtainable through discovery .. .-· as opposed to a bill of particulars ( 162 AD2d at 265. supra). Nonetheless, because there was no showing or prejudice by providing the information requested, and because .. rigid adherence to the purpose behind a bill or particulars in [thatj case would only result in additional meaningless time-consuming motion practice:· the court declined to vacate the demand in its entirety. In Miccarelli. 219 AD2d at 470. the Appellate Division, First Department. held that the IAS court had abused its di scretion in striking a demand seeking a statement of·'how it will be claimed each of said injuries were caused by the alleged negligence.'' finding that the demand did not improperly seek evidentiary infotmation but only a general explanation of causation . It is well settled that --vague. ambiguou s. nonspecific and open-ended asse1tions contained in [a] plaintiffs' bill of particulars. qualified by the language •including but not limited to." fail to satisfy the purpose of a bill of pa1ticulars." ' (Alvarado, 302 AD2d at 265. supra; see also Dejesus ,, New York City Haus. Auth .. 46 AD3d 474. 475 [1st Dept 2007] [holding that the lower coutt -3- [* 2] 3 of 4 FILED: BRONX COUNTY CLERK 02/10/2020 12:44 PM NYSCEF DOC. NO. 49 INDEX NO. 33753/2018E RECEIVED NYSCEF: 02/10/2020 Index .\Q. 33753 / 201SE erred in not striking plaintiffs all egation in her bill of particulars that defendant failed .. to comport with all applicable statutes of the Mu ltipl e Dwelling Law and such other applicab le o rd inances. codes and statutes" because ··th is vague and open-ended asse11ion amp lifi ed nothing .. ]) . Here, defendants' demand seeks, among other things, particularized allegations with respect to Dr. Stern and Dr. Moazarn i. Plaintiff's general claim that these physicians --supervised" the anesthesio logists who intubated plaintiff is insufficient, particularl y since it belies logic that urologists, including a resident urologi st, wou ld be tasked with the responsibi lity of supervising specia lists. namely anesthesiologists, outside their area of expe11isc. evertheless. to the extent that p lainti ff wishes to advance such c laims. but fee ls that plaintiff is at an informational disadvantage given the stage of the proceeding, plaintiff should tate as much in a supplemental pleading and should state when plaintiff intends to pro ide further supplementation (perhaps fo llowing depositions)(Miccare!li, 219 AD2d at 470. supra). Indeed, it is inadequate for plaintiff to repeat the exact same responses in respective bills of partic ul ars. especiall y where the physicians that have been sued practice in different areas and had different roles with respect to plaintiffs care. Accordingly, the branch of defendants· motion seeking to compel plaintiff to supplement her responses to defendants· individual demands for bill s of" particu lars as to Dr. Stern and Dr. Moazami is gra nted to the extent provided herein. The motion is otherwise denied. Finally, the court notes that nothing in this decision and order reache the merits of plainti ffs underlying claims against defendants. Although in this motion defendants seek. in part, to di smiss plaintiffs complaint. they do o as a penalty for plaintiffs a lleged noncomp liance with defendants' demand for verified bill s of particulars. Defendants have not. however, moved to dismiss for plaintiffs fail ure to state a claim (CPLR §3211 [a]l7]) or moved for summary judgmen t dismissing p laintiffs comp laint as against defendants (CPLR §3212). Accordingly, it is hereby ORDERED that defendants ' motion is granted so lely to the extent that plaintiff must serve supplemental responses to Dr. Stern and Dr. Moazami's individual demands for a bill of particulars, providing a response addressing the court"s concerns raised herein. within 30 days of receipt of this decision and order; and it is finther ORDERED t hat the motion is otherwise denied; and it is further ORDERED that the parti es are directed to appear for a compl iance conference on Wednesday March 18, 2020 at 9:30 AM at the courthouse located at 85 1 G1·and Concourse. Room 600 (Part 19A). This constitutes the dec is ion and order of the court. Dated: [* 3] ~- 5 - 6)GQ Q 4 of 4

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