Duvernoy v CNY Fertility, PLLC

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[*1] Duvernoy v CNY Fertility, PLLC 2020 NY Slip Op 50600(U) Decided on May 13, 2020 Supreme Court, Washington County Muller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 13, 2020
Supreme Court, Washington County

Misha M. Duvernoy, Formerly Known as Misha Mugits, Plaintiff,

against

CNY Fertility, PLLC, Defendant.



24707



Brennan & White, LLP, Queensbury (Joseph R. Brennan of counsel), for plaintiff.

Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Christopher F. DeFrancesco of counsel), for defendant.
Robert J. Muller, J.

On or about October 29, 2012, plaintiff underwent a procedure for the purpose of donating eggs to defendant fertility clinic. Plaintiff alleges that excessive amounts of gonadotropin were administered in connection with that procedure, as the result of which she developed ovarian hyperstimulation syndrome with multiple bilateral ovarian cysts. Plaintiff commenced this medical malpractice action on April 27, 2015. Issue was then joined on September 8, 2015, with defendant simultaneously serving a demand for a bill of particulars, together with several discovery demands and a notice to take deposition. Plaintiff failed to respond and, on May 11, 2017, defendant served a demand for resumption of prosecution (see CPLR 3216 [b] [3]).

Plaintiff subsequently served a bill of particulars and discovery responses on July 7, 2017. On July 19, 2017, plaintiff served a notice to take deposition on defendant, including a date of August 7, 2017. This deposition was adjourned without date, however, at the request of counsel for defendant — whose mother was in the hospital. Counsel for plaintiff then sent correspondence to counsel for defendant on July 28, 2017 with proposed dates for a scheduling order, but counsel for defendant never responded. Since that time, the action has sat dormant. Depositions have not been held nor a note of issue filed. Presently before the Court is defendant's motion seeking to dismiss the complaint.

Defendant first contends that the complaint must be dismissed for want of prosecution. In this regard, CPLR 3216 (a) provides that "[w]here a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof . . . , or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, . . . may dismiss the party's pleading on terms." CPLR 3216 (b) then provides, in pertinent part:

"No dismissal shall be directed under [CPLR 3216 (a)] and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with:"(1) Issue must have been joined in the action;"(2) One year must have elapsed since the joinder of issue . . . ;"(3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him or her for unreasonably neglecting to proceed . . . ."

Finally, CPLR 3216 (e) provides that "[i]n the event that the party upon whom is served the demand specified in [CPLR 3216 (b) (3)] fails to serve and file a note of issue within such ninety day period, the court may take such initiative or grant such motion unless the said party shows justifiable excuse for the delay and a good and meritorious cause of action."

Here, defendant has submitted proof that more than one year has elapsed since joinder of issue in the action. Defendant has further submitted proof that the written demand served upon plaintiff stated as follows:

"PLEASE TAKE NOTICE that demand is hereby made upon the plaintiff by the defendant that the plaintiff resume prosecution of this action and serve and file a Note of Issue placing this action upon the calendar for trial within ninety (90) days after receipt of this demand."PLEASE TAKE FURTHER NOTICE that the default of the plaintiff in complying with this demand within ninety (90) days after the receipt thereof will serve as a basis for a motion by the said defendant for dismissal against plaintiff for unreasonably neglecting to proceed."

Although defendant failed to provide proof that the demand was served by registered or certified mail, plaintiff admits to having received timely notice of the demand. As such — and in the absence of any claimed prejudice by plaintiff — the Court disregards this failure as a procedural irregularity (see Balancio v American Opt. Corp., 66 NY2d 750, 751 [1985]; Reyes v New York City Tr. Auth., 52 Misc 3d 1202[A], 2016 NY Slip Op 50954[U], *2 [Sup Ct, NY County 2016]; Secreto v International Bus. Machs. Corp., 194 Misc 2d 512, 513-514 [Sup Ct, Dutchess County 2003]). Defendant has thus demonstrated compliance with all of the necessary conditions precedent (see CPLR 3216 [b]).

To that end, plaintiff must now demonstrate a justifiable excuse for the delay and a good and meritorious cause of action (see CPLR 3216 [e]). Turning first to a justifiable excuse, counsel for plaintiff has submitted an affidavit stating as follows:

"Upon receipt of the 90-day demand, [I] contacted [d]efendant's attorneys by telephone to discuss the 90-day demand and the outstanding discovery demands and . . . the scheduling of depositions. At that time, counsel for [d]efendant informed [me] that the 90-day demand had been served for the purpose of securing appropriate responses from [p]laintiff's attorneys to [d]efendant's outstanding demands and that, if the responses were forthcoming, such would be satisfactory to the attorneys for [d]efendant and that the attorneys for the parties could thereafter communicate and schedule depositions, for a [*2]mutually convenient date or dates."

As such, counsel for plaintiff "understood and believed that the 90-day demand had essentially been withdrawn by [d]efendant and was a nullity" once plaintiff's bill of particular and discovery responses had been served. Counsel for plaintiff further states that, "for most of the last year, [he has] either not been able to engage in the practice of law or [has] done so on a periodic limited basis, due to significant personal medical issues, which have included a stroke, heart attack[ and] quadruple coronary bypass surgery," among other things.

In opposition, counsel for defendant contends that "[a]t no point did [he] agree to withdraw [the] 90-day demand," and that the medical issues impacting counsel for plaintiff's ability to practice law from approximately September 2018 onward fail to account "for the delay in this matter from September 2015 through July 2017, and again from July 2017 through [the] fall of 2018."

" '[I]n evaluating the adequacy of the proffered excuse for [a] plaintiff's delay,' the [C]ourt must consider and weigh 'the appropriate factors, including the history of the case, the extent of the delay, evidence of intent to abandon the case [and any] undue prejudice to . . . defendant' " (Burchard v City of Elmira, 52 AD3d 881, 881 [2008], quoting Schneider v Meltzer, 266 AD2d 801, 802 [1999]; see King v Jordan, 243 AD2d 951, 953 [1997]).

At the outset, there is no evidence that plaintiff intended to abandon the case and defendant does not claim any undue prejudice — aside perhaps from the prejudice associated with the passage of time and the concomitant decline in memory. That being said, the extent of the delay here is considerable. While the Court is sympathetic to counsel for plaintiff's medical issues, the fact that more than one year elapsed between the service of plaintiff's responses and the onset of these issues cannot be ignored. Indeed, no significant action was undertaken to proceed with prosecution during this period. Although counsel for defendant requested an adjournment of the August 7, 2017 deposition and apparently failed to respond to counsel for plaintiff's July 28, 2017 correspondence, these instances "only serve to justify a brief delay" (Bage v Wastestream, Inc., 250 AD2d 958, 959 [1998]; cf. Brady v Mastrianni, Abbuhl & Murphy, 187 AD2d 858, 859 [1992]) — not a delay of more than one year. It must also be noted that plaintiff has proffered no excuse whatsoever for the nearly two-year delay in serving responses from September 2015 to July 2017. Under the circumstances, the Court finds that plaintiff has failed to demonstrate a justifiable excuse (see Baczkowski v Collins Constr. Co., 89 NY2d 499, 503-504 [1997]; Bage v Wastestream, Inc., 250 AD2d 959 [1998]).

The Court further finds that — even if plaintiff had succeeded in demonstrating a justifiable excuse — she has failed to demonstrate a good and meritorious cause of action. In a medical malpractice action such as this a plaintiff must submit an affidavit of merit by a medical expert demonstrating malpractice on behalf of defendant in order to demonstrate a good and meritorious cause of action (see Schneider v Meltzer, 266 AD2d at 803; Herrington v Saratoga Hosp., 202 AD2d 901, 901 [1994]). Here, plaintiff has failed to submit any such affidavit in opposition to the motion.

Briefly, insofar as the complaint "reserves the right to rely on the doctrine of res ipsa loquitor to show the fault, liability and negligence on the part of the defendant," the Court finds that such doctrine is inapplicable. "This doctrine, which permits a factfinder to infer negligence without an expert, is available only in 'a narrow category of factually simple medical malpractice cases requir[ing] no expert to enable the jury reasonably to conclude that the accident would not happen without negligence'" (Calcagno v Orthopedic Assoc. of Dutchess County, PC, 148 AD3d [*3]1279, 1281 [2017], quoting Kambat v St. Francis Hosp., 89 NY2d 489, 496 [1997]; accord States v Lourdes Hosp., 100 NY2d 208, 210 [2003]; see Monzon v Chiaramonte, 140 AD3d 1126, 1128-1129 [2016]). Here, medical review is clearly necessary to establish whether excessive amounts of gonadotropin were administered and, further, whether these excessive amounts caused plaintiff's alleged injuries — "these are not matters within the knowledge of the average juror or the realm of common sense" (Calcagno v Orthopedic Assoc. of Dutchess County, PC, 148 AD3d at 1281; see Leone v United Health Servs., 282 AD2d 860, 860-861 [2001]). It must also be noted that plaintiff has not raised this doctrine in opposition to the motion.

The Court therefore finds that defendant is entitled to dismissal of the complaint.Defendant next contends that the complaint must be dismissed as a result of plaintiff's failure to file a certificate of merit. Although this contention need not be addressed in view of the determination reached above, the Court nonetheless observes that such failure appears to provide an alternative basis upon which to dismiss the complaint. CPLR 3012-a requires counsel for plaintiff to submit a certificate of merit declaring that he or she has consulted with at least one licensed physician who is knowledgeable regarding the relevant issues, has reviewed the facts of the case and has concluded that a reasonable basis exists for the action. This certificate of merit "shall be filed within ninety days after service of the complaint" (CPLR 3012-a [a] [2]).

Here, almost five years have passed since commencement of the action and plaintiff still has not filed a certificate of merit. Counsel for plaintiff contends that the certificate was drafted but "inadvertently not filed or served in a timely manner." No further details are given, however, and counsel fails to attach a copy of the certificate to the opposition papers. Additionally, while plaintiff requests that the Court "authorize [her] to file and serve [the] Certificate of Merit within 30 days," she has failed to make a cross motion for this relief.

In Horn v Boyle (260 AD2d 76 [1999], lv denied 94 NY2d 762 [2000]), the Appellate Division, Third Department found that "dismissal of plaintiff's action was proper not simply because he failed to timely file a certificate of merit, but because he failed to demonstrate entitlement to file a late certificate of merit, the most damaging omission being the absence of any evidence in the record to establish a reasonable basis for commencement of the action" (id. at 79; see Calcagno v Orthopedic Assoc. of Dutchess County, PC, 148 AD3d at 1280). Just as in that case, plaintiff here has not only failed to timely file a certificate of merit but has also failed to demonstrate her entitlement to file a late certificate of merit, as well as failed to establish a reasonable basis for commencement of the action. Indeed, as noted above plaintiff has not submitted an affidavit of merit by a medical expert to demonstrate a good and meritorious cause of action and the doctrine of res ipsa loquitor is not applicable (see Calcagno v Orthopedic Assoc. of Dutchess County, PC, 148 AD3d at 1281; Leone v United Health Servs., 282 AD2d at 860-861).

Based upon the foregoing, defendant's motion is granted in its entirety and the complaint dismissed.

Therefore, having considered the Affidavit of Christopher F. DeFrancesco, Esq. with exhibits attached thereto, sworn to August 5, 2019, submitted in support of the motion; Memorandum of Law of Christopher F. DeFrancesco, Esq., dated August 5, 2019, submitted in support of the motion; Affidavit of Joseph R. Brennan, Esq. with exhibits attached thereto, sworn to September 27, 2019, submitted in opposition to the motion; Affidavit of Christopher F. DeFrancesco, Esq., sworn to October 2, 2019, submitted in support of the motion; Affidavit of [*4]Joseph R. Brennan, Esq. with exhibits attached thereto, sworn to January 26, 2020, submitted in opposition to the motion; Affirmation of Christopher F. DeFrancesco, Esq., dated November 29, 2019, submitted in support of the motion; and Affirmation of James D. Lantier, Esq., dated November 29, 2019, submitted in support of the motion, it is hereby

ORDERED that defendant's motion is granted in its entirety; and it is further

ORDERED that the complaint is dismissed.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated August 5, 2019 and the submissions enumerated above. Counsel for defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon plaintiff in accordance with CPLR 5513.



Dated: May 13, 2020

Lake George, New York

ROBERT J. MULLER, J.S.C.