Lollman v Pfeiff

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Lollman v Pfeiff 2021 NY Slip Op 33572(U) June 2, 2021 Supreme Court, Madison County Docket Number: Index No. EF2019-1517 Judge: Donald F. Cerio, Jr. 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: MADISON COUNTY CLERK 06/03/2021 10:18 AM NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 06/03/2021 . STATE STATE OF OF FILED IN FILED IN MADISON COUNTY COUNTY CLERK'S CLERK'S OFFICE OFFICE MADISON AM 2021 10:18 10:18AM Thursday, June June 3,3, 2021 Thursday, NEW NEW YORK YORK COUNTY OF MADISON COUNTY OF MADISON SUPREME SUPREME COURT COURT and WILLIAM WILLIAM LOLLMAN, LOLLMAN, LOI KATHLEEN LOI,LMAN KATHLEEN LMAN and . INDEX NO. EF2019-1517 'DECISION ANl> ORDER ORDER DECISION AND Plaintiffs, -against- -against..: .Plaintiffs, Index No. No. EF2019-1517 EF2019-1517 Index JAMES PFEIFF, M.D., individually individually and and as as agent, agent, officer, officer, JAMES M.D., PFEIFF, ' and/or of and/or employee employee of Women's Women's Health Health Associates, Associates, Women's Women's Oneida Health Associates ofof Oneida, Oneida, Oneida Healthcare, Oneida Health Associates Oneida Healthcare, Oneida Healthcare Corporation, Oneida Health Health Systems, Systems, Inc. Inc. Healthcare Corporation, and/or Oneida Health Health Ventures, Ventures, Inc.; Inc.; HAZEM HAZEM QALLA, QALLA, and/or Oneida · M.D., M.D., individually individually -and officer, and/or employee . and as as agent, and/or employee agent, officer, Health of Health of Women's Women's Health Associates, Associates, Women's Women's Health Associates ofof Oneida, Oneida, Oneida Oneida Healthcare, Healthcare, Oneida Oneida Associates Oneida Inc. Healthcare Corporation, Corporation, Oneida Health Systems, Systems, Inc. Healthcare Health Health and/or Oneida Health Ventures, Inc:; and/or Oneida WOMEN'S WOMEN'S Ventures, Inc.; and through its agents, HEALTH HEALTH ASSOCIATES, ASSOCIATES, by by and through its agents, officers and/or·employees; WOMEN'S WOMEN'S HEALTH officers and/or HEALTH employees; ASSOCIATES AS SOCIATES OF OF ONEIDA, ONEIDA, by by and and through through. its its agents, agents, officers and/or officers and/or employees; employees; ONEIDA ONEIDA HEAL THCARE, by by HEALTHCARE, officers and/or and and through through its its agents, officers and/or employees; agents, employees; HEALTHCARE ONEIDA ONEIDA HEALTHCARE CORPORATION, by by and and CORPORATION, and/or officers through its agents, officers and/or employees; ONEIDA ONEIDA through its agents, employees; and HEALTHTH SYSTEM, through its HEAL INC., by and through its agents, SYSTEM, INC., agents, by and ONEIDA officers and/or and/or employees;, employees;,and ONEIDA HEALTH HEALTH officers and through its VENTURES, INC., by and through its agents, officers officers INC., agents, VENTURES, by and or or employees, and employees, I/ ' Defendants. Defendants. The above-entitled above-entitled action The action has has come come before before this this court court upon upon the the December December 30, 30, 2020, 2020, Notice Notice ofof Oneida Health d/b/a Oneida James Motion on on behalf behalf ofof Defendants Defendants James Pfeiff, M.D., Oneida Health Systems, Inc., d/b/a Oneida Systems, Inc., M.D., Pfeiff, Healthcare Healthcare, Oneida Healthcare Corporation, Oneida Oneida Medical Medical Services, Services, PLLC, PLLC, d/b/a d/b/a Women's Women's Oneida Healthcare, Corporation, plaintiffs' Health of Oneida Health dismissal the Health Associates, Associates, and and Oneida Health Ventures, Ventures, Inc., Inc., seeking seeking dismissal of the plaintiffs' the complaint been commenced. complaint as as having been untimely comm~nced. Accompanying the Notice Notice.of Motion isis the the of Motion untimely Accompanying having December 30, 2020, 2020, Memorandum Memorandum ofof Law; Law; the the December December 30, 30, 2020, 2020, Attorney Attorney Affidavit Affidavit ofof December 30, Affidavit M.D. James the December of Anthony J. DePema, Esq., and; the December 29, 2020, Affidavit of James Pfeiff, M.D. J. 29, 2020, Pfeiff, DePerna, and; Esq., Anthony Motion Page 1I ofof 66 Page [* 1] 1 of 6 FILED: MADISON COUNTY CLERK 06/03/2021 10:18 AM NYSCEF DOC. NO. 115 INDEX NO. EF2019-1517 RECEIVED NYSCEF: 06/03/2021 '\ Defendant Hazem Hazem Qalla, M.D., also filed filed aa Notice Notice ofof Motion dated January January 4, seeking also Motion dated M.D., Qalla, 4, 2021, 2021, seeking plaintiffs' dismicca dismissal of complaint along with any cross-claims against him. Accompanying of the with the plaintiffs' complaint cross-claims against him. any along Accompanying the Notice ofof Motion the Notice the January Memorandum Motion was 4, Memorandum of the December 29, 29, 2020, was the of Law; the December 2021, 4, 2021, Law; 2020, January Affirmation of N. Waldman, M.D., and; the January 4, 2021, Affirmation of Sarah Affirmation the of Sarah of Richard Richard N. Affirmation and; Waldman, M.D., 4, 2021, January Murnane Kelly, Esq. Esq. Murnane Kelly, Defendant Plaintiffs filed of Cross-Motion dated !:lated March 5, 2021, 2021, seeking summary Plaintiffs subsequently subsequently filed a Notice Notice of Cross-Motion March 5, seeking summary judgment with respect to liability and the scheduling with respect the of an an 1.nquest to determine damages. to liability and of inquest to determine damages. scheduling Plaintiffs Plaintiffs also opposed opposed the the relief relief sought by Defendants Pfeiff, et respect to dismissal. also sought respect Defendants et al., with to dismissal. Pfeiff, al., with by Accompanying the Notice Notice of was the Affirmation of J. Patrick Patrick Lannon Lannon dated the of Motion was of J. Motion the Attorney Affirmation dated Accompanyiñg Attorney Plaintiffs' March 5, 2021; the March 5, 2021, Plainti'ffs' Memorandum Memorandum in March of Law in Opposition to of Law Opposition to the March 5, 2021; 5, 2021, Defendants' Plaintiffs' Defendants' Motions for Summary Judgment and of for Motions for Judgment and in in Support Support of Plaintiffs' Cross-Motion Cross-Motion for Summary Plaintiffs' Summary Judgment; Plaintiffs' Statement Statement Facts of Undisputed Material Facts dated March 5, 2021; of Undisputed Material dated March 5, 2021; Judgment; Summary Plaintiffs' Defendants' Plaintiffs' Response to ofFact Within Their Respective Response to Defendants' Statements of Their Respective Statements Fact Contained Contained Within Plaintiffs' Attorney Affidavits, dated dated March March the Plaintiffs' March 5, 2021, and; 5, Expert Affidavit. March Expert Affidavit. Affidavits, 2021, 5, 2021, 2021, 5, and; the Attorney judgment Counsel for Pfeiff, et submitted the April 7,7, 2021, 2021, Affidavit Counsel for Defendants Defendants et al., the April Affidavit of Marc Marc of thereafter submitted Pfeiff, al., thereafter Eigg, M.D., and the April 13, 2021, Affidavit in Reply of Mark L. Dunn; Esq. Counsel the April Affidavit in of Mark L. Esq. Counsel and Dunn; Eigg, M.D., 13, 2021, Reply submitted an amended amended affidavit of Attorney Dunn Dunn dated April 15, which served toto correct a an April correct submitted affidavit of Attorney dated which served 15, 2021, 2021, typographical error as contained in his April 13, 2021, affidavit. Counsel further submitted the typographical contained Counsel further submitted error as in his April affidavit. the 13, 2021, Plaintiffs' April 15, 2021, Reply to Plaintiffs' Statement April under to of Alleged Undisputed Facts under cover dated Statement of Alleged Undisputed Facts cover dated 15, 2021, Reply 2021.1 1 April 15, April 15, 2021. responded to the the April in Reply of Plaintiffs responded to above by by the April 14, 2021, Attorney Attorney Affirmation Affirmation in of the above 14, 2021, Reply plaintiffs' an unredacted version of the the plaintiffs' expert Attorney Lannon Lannon which which included included an unredacted version of expert affidavit affidavit as as Attorney 2021.2 2 previously submitted on or about March 5, 2021. · on about March submitted or 5, previously Plaintiffs This matter was submitted at the court's court's April 16, motion term for This matter was submitted motion at the April term for consideration. consideration. 16, 2021, 2021, Initially, this court would note that the motion for for summary summary judgment judgment filed filed on this would on behalf of behalf of court note that the motion Initially, parties' with Qalla moot given the parties' execution execution of a stipulation stipulation of discontinuance discontinuance Defendant Qalla is moot given the of of with Defendant is objected the Defendants Pfeiff's, Pfeiffs, etet al, al, counsel, in his his April April 15, letter, objected toto the in cover 2021, ; cover counsel, 15, 2021 letter, plaintiffs' filing of cross-motion which was submitted submitted beyond the time time frame of a cross-motion which was beyond the frame ordered ordered by by this this filing court within within it's counsel objected to the previously issued issued Scheduling Order. Additionally, counsel objected to the court it's previously Order. Additionally, Scheduling plaintiffs' submission name was redacted. redacted. of expert witness affidavit as the the physician's physician's name was submission of the the plaintiffs' expert witness affidavit as 1 'Defendants plaintiffs' of the expert remained unredacted pertained The aspects aspects of the expert affidavit which remained unredacted pertained toto biographical biographical affidavit which information not motion. et al, to the determination of the present motion. Defendant Pfeiff information not necessary to the of the present Defendant determination Pfeiff's, s, et al, ñecessary plaintiffs' counsel was provided the the opportunity to submit a further reply addressing the plaintiffs' medical medical counsel further the was provided to submit opportunity reply addressing that no further expert. However, by by letter letter dated May counsel informed the court that reply counsel informed the court no further expert. dated However, 2021, reply 19, 2021, May 19, concede counsel does not would be be submitted. However, it is acknowledged acknowledged and and understood understood that that counsel does not concede would submitted. it is However, Undisputed Facts. with respect to the the accuracy accuracy ofof any respect of the Statement of Undisputed the plaintiffs' plaintiffs' submitted Statement of Facts. with to submitted any of 2 2The 1)age 2 2 of Page of 6 6 [* 2] 2 of 6 FILED: MADISON COUNTY CLERK 06/03/2021 10:18 AM NYSCEF DOC. NO. 115 INDEX NO. EF2019-1517 RECEIVED NYSCEF: 06/03/2021 Qalla.3 3 respect to the the peñdiñg pending action against Defendant Qalla. As no decision will will issue Defendant written decision issue respect to against As such, no written action such, with respect to · with respect this motion. to this motion. respect matter remaining matter before this this court, essentially, the now presented presented is With respect to to the the remaining before the issue issue now is court, essentially, action the present present action against Defendant Pfeiff, et al., al., was was beyond beyond the the whether the commencement commencement of whether the of the against Defendant et Pfeiff, action. statute ofoflimitations pertaining to a medical malpractice action. Here, the plaintiff had undergone statute limitations to medical malpractice the plaintiff had undergone Here, pertaining on August 18, 2014, under under the the supervision supervision of Defendant Pfeiff (Pfeiff) an laparotomy Pfeiff of Defendánt an exploratory on August 18, 2014, exploratory laparotomy (Pfeiff) Pfeiff and (DelPino). During the surgery Pfeiff and DelPino had, individually, inserted two and Dr. Dr. DelPino DelPino (DelPino). the and DelPino inserted two had, individually, surgery During fluid from of from within the body of plaintiff during during the Penrose drains toto provide provide for Penrose drains for drainage drainage within the body of the the plaintiff the of fluid I' of of the Penrose had been removed course of surgery. On 25, 2014, one of the two Penrose drains had been removed by course surgery. On August August one two drains 25, 2014, by remained The Penrose Pfeiff had advanced advanced the drain drain Pfeiff. The second Penrose drain, however, remained in place place after after Pfeiff had the Pfeiff. second in drain, however, approximately two centimeters. On On August 26, Pfeiff, during his examination of the of the two centimeters. August his examination 26, 2014, 2014, Pfeiff, approximately during plaintiff, found that-this second Penrose drain was not present. Though no nursing records Penrose drain was not records found that this second present. Though no plaintiff, nursing that the drain indicated that Penrose drain had been removed by staff, Pfeiff assumed indicated the second second Penrose had been removed the nursing Pfeiff assumed staff, by the nursing that the the·drain had been removed when the had been changed by the nurses and otherwise drain and otherwise that had been removed when the dressing had been changed the nurses dressing by the site site to Pfeiff with found the be unremarkable and healing. healing. Apparently no inquiry inquiry was was made made by by Pfeiff with found to be unremarkable and no Apparently the drain upon his that it had been been removed during the the removal'of upon assumption removed the regard to removal 'of the regard to the drain his assumption that it had during change of the the dressing. dressing. No No further further medical medical action was undertaken with respect to this this drain and action was undertaken respect drain and change of with to the plaintiff was was subsequently discharged from the on 29, 2014. 2014. from the hospital the plaintiff discharged hospital on August August 29, subsequently With Subsequently, the plaintiff piaintiffhad on-going abdominal discomfort resulting in her the had experienced experienced in her abdominal discomfort Subsequently, on-going resulting plaintiff seeking further medical medical care various providers. providers. On November 9, the plaintiff further care from from various On November the 9, 2018, 2018, seeking abdominal presented atat the the Oneida Healthcare Emergency Department again complaining of abdominal presented of again Oneida Healthcare Department complaining Emergency scan of pain. A pain. A CT CT scan of her her abdomen abdomen revealed the presence Subsequent revealed the presence ofof an an object object within her pelvis. Subsequent within her pelvis. laparoscopic Penrose of a Penrose laparoscopic surgery surgery performed performed on on Noveniber November 23, 2018, resulted in the removal in removal of a resulted the 23, 2018, of approximately ten ten centimeters in length from the of plaintiff. As As is · drain drain of approximately centimeters in length is relevant relevant from abdomen the abdomen of the the plaintiff. to particular drain, Pfeiff, during the course to this particular follows: of his deposition, testified as follows: this the course of his deposition, testified as drain, Pfeiff, during Q: Q: had you after you given at all all to what at Doctor, at any any time after surgery, surgery, had given any any thought thought at to what time Doctor, happened toto the Penrose drain iri the area? that been placed placed iri pelvic area? the Penrose drain that had had been the deep pelvic deep happened A: A: Um...no. Q: Q: Other assumption that had Other than than the assumption -- -- Pm I'm sorry. Other than the assumption that you you had the assumption sorry. than the made atat one that perhaps perhaps the might have pulled itit out out when when they they might made one time time that the nurses nurses have pulled gauze removed the pad? . · removed the gauze pad? A: A: That's correct. That's correct. Q: - that that you the that there Did come a time time when when you or told that that the there Did there there you realized realized or that you were were told come Q: Um ...no. Other 3 Qalla Stipulation as to to Defendant Defendant The parties parties filed filed the the executed executed Stipulation of Discontinuance as Qalla on on 3The of Discontinuance May 2021. 14, 2021. May 14, . of 6 Page 3 of Page 3 6 [* 3] 3 of 6 FILED: MADISON COUNTY CLERK 06/03/2021 10:18 AM NYSCEF DOC. NO. 115 INDEX NO. EF2019-1517 RECEIVED NYSCEF: 06/03/2021 right pelvis area a Penrose Penrose drain? was found found in pelvis area drain? in the the deep deep right was / A: A: Yeah, four years later. (P. later. (P. 57, thereof). four years 57, thereof). Yeah, abdomen on As a result result of Penrose drain within the abdomen of the discovery of drain within the of the the plaintiff plaintiff on of the of the the Penrose As a discovery November 23, 2018, the present action: was commenced by the filing of the summons and action of the summons and the present was commenced the November 23, 2018, filing by complaint on May on 2019. complaint 23, 2019. May 23, / the ground commencement complaint upon Pfeiff for dismissal dismissal of the now moves moves for of the plaintiffs' plaintiffs' complaint upon the ground that that commencement Pfeiff now two and of limitations for the the two and one one half half year year statute statute of action occurred occurred beyond beyond the of limitations for the this action of this 214-a provides for commencement actions (CPLR 214-a). of medical malpractice malpractice actions (CPLR 214-a). However, 214-a provides for the the commêñcemeñt of medical However, the body of the commencement the latent latent of a foreign foreign object of upon the discovery of object within within the body of the commencement of an an action action upon discovery year limitation. an action plaintiff beyond beyond the year Under such one-half limitation. Under such circumstances, an action may plaintiff the two two and and one-half circumstances, may ifif the the be timely commenced after the expiration of the two and one~half year statute of limitations expiration statute of limitations the of the two and one-half year be commenced after timely object" one action is commenced commenced within one year after "foreign within of object" or or within one within after the the discovery of the the "foreign action is one year discovery of the year after facts facts had become known known which would have lead to the discovery which lead to the of the would have reasonably year after had become reasonably discovery foreign object, whichever whichever is earlier. foreign is earlier. object, object" itit is what is The meaning of what a "foreign object" is, this provision, defined by identifying identifying what within defined "foreign this provision, The meaning of what is, within by object' not include not. More precisely, the statute states that, "[T]he term 'foreign object' shall not include a states "[T]he term 'foreign shall the statute not. More that, precisely, device." assert that chemical compound, fixation device or prosthetic aid device or the the defendants defendants assert that fixation prosthetic aid or chemical or device." Here, Here, compound, that the the Penrose drain drain isis a fixation device, rather than object, and, as such, such, that the fixation rather than a foreign foreign the Penrose device, object, and, as plaintiffs' malpractice plaintiffs' filing filing in given from which the 2019 is given that the act of negligence, from which the malpractice that the act of in 2019 is untimely negligence, untimely of the action. arises, occurred inin 2014. 2014. Consequently, defendants seek defendants seek dismissal dismissal the present of present action. occurred Consequently, arises, discovered The plaintiffs, on assert Penrose drain is a foreign hand, assert that the drain is foreign object, object, was was discovered The plaintiffs, on the the other other that the Penrose hand, was timely in 2018, and and the commenced commenced in 2019, seven months after it's discovery, in only seven months after it's discovery, was the action, in 2018, 2019, action, timely only filed in conformity conformity with with CPLR in CPLR 214-a. 214-a. filed submissions of counsel, This court, upon having given due to and arguments arguments of due consideration consideration to the the submissions and This upon given counsel, court, having fixation rather than finds the Penrose drain, under these circumstances, to these to be foreign object be a foreign object rather than a fixation finds the Penrose under circumstances, drain, in November device. As such, such, the the discovery the Penrose Penrose drain within the body of drain within the body of of the the plaintiff plaintiff in November device. As of the discovery statute of satisfies the 2018 and the the commeñcement commencement of in of 2019, is timely and satisfies the statute of the action action in May of is and 2018 and of the 2019, timely May defeñdañts' motion to malpractice action. The defendants' motion limitations for aa medical malpractice action. The to dismiss dismiss isis therefore therefore limitations for medical denied. denied. in Carmona This court concludes concludes that findings in v. Lutheran Lutheran Medical Medical Center, Center, 238 238 AD2d AD2d 535, that the the findings Carmona This court 535, surgical distinguishable circumstances. In 22""nd Dpt. from the present Dpt. 1997,. 1997, .are are not from the present circumstances~ In Carmona Carmona a surgical not distinguishable for the the course the course of drain had been been placed placed within the plaintiff's plaintiffs body body during the of gall gall bladder bladder surgery for drain had within the surgery during the removed prior to not been and blood. the drain had of draining draining excess bile and blood. However, the drain had not been removed prior to the purpose of purpose excess bile However, chest of chest years later and was discovered nine years plaintiffs departure departure from the hospital and nine later after after aa history history of plaintiff's from the hospital was discovered and sponges, Court surgical and abdominal pains. pains. As held "Like surgical clamps, scalpels, and the Court held there, "Like and abdominal As the sponges, scalpels, clamps, there, the removed from intended to be surgical drains have a temporary medical function and, ... , are intended to medical function are be removed from the surgical drains have and, ..., temporary Page 4 4 of of 6 6 Page [* 4] 4 of 6 FILED: MADISON COUNTY CLERK 06/03/2021 10:18 AM NYSCEF DOC. NO. 115 INDEX NO. EF2019-1517 RECEIVED NYSCEF: 06/03/2021 surgery." to hold patient's body body shortly after after surgery." (Id Significantly, the the Court Court went went on on to hold that: that: (Id at at 535). 535). Significantly, shortly patient's Moreover, the application of of the construed rule the the discovery discovery the application the narrowly construed rule regarding narrowly regarding objects" as of "foreign "foreign objects" pursuant to is justified in the instant instant action, as pursuant CPLR 214-a 214-a is justified in the of to CPLR action, there isis no no danger of orJrivolous claims, assessment of the appellant's appellant's danger of false false or frivolous assessment of the there claims, professional judgment judgment or is to establish negligence, and to establish and professional or discretion discretion is not not necessary negligence, ñecessary there is break between between the negligence and the the plaintiff's plaintiff's negligence and there is no no causal causal break the appellant's appellant's (Id at at 535-536). injuries. (I<j 535-536). injuries. Moreover, drain not to Nothing less less may be said present circumstances. The drain was was not to be be said of of the the present circumstances. The Penrose Penrose may be not p~rmanently affixed such that it was to remain beyond its intended utility. The drain, not unlike unlike affixed such that it intended utility. The was to remain beyond its drain, permanently · other surgical instruments instruments and was be removed shortly after its its intended intended purpose, purpose, and devices, removed after other surgical was to to be devices, shortly within which was to drain purulent material material from the or potential site drain purulent or potential site of of infection infection from from within which was to from the abscess abscess satisfied the of the the plaintiff, plaintiff; had been accomplished. Once the purpose had had been been satisfied had been accomplished. Once the intended intended purpose the body of body the .the drain would would no no longer longer be be of of any surgical or medical medical utility. served or uttlity. Having served it's it's purpose, purpose, the the drain Having any surgical drain would be be removed removed from the patient's body body rather than retained therein for any medical from the patient's rather than _ retained therein for drain would any medical aid" which purpose. The The most most that may be be said that may drain that it it was drain was was aa "surgical "surgical aid" which purpose. said of of the the Penrose Penrose was that are as was not intended, intended, at time, to be a fixation device. "Fundamentally, if the facts are as alleged, to if the facts at any be fixation device. was not alleged, "Fundamentally, any time, plaintiff.. .left the hospital after an operation the hospital after an with therapeutically useless and potentially plaintiff...left operation with useless and potentially therapeutically body." dangerous surgical paraphernalia lodged in body." surgical paraphernalia (See v. Strong Memorial Memorial (See Walton Walton v. Strong dangerous lodged in [her] [her] Memorial Hospital, Hospital, 25 NY3d 554, 573-574 [20151). 25 NY3d Memorial 573-574 [2015]). 554, Nothing Therefore, as as the Penrose drain drain is object, the discovery exception as contained contained wi,thin within the Penrose is a foreign foreign the exception as object, discovery all respects, CPLR 214..,a applies applies and the commencement of the action by the plaintiffs was, in all CPLR 214-a and the of the action the plaintiffs commencement respects, was, in by defendants' timely and comported comported with the proscriptions. Therefore, the motion toto and with proscriptions. the defendants' motion the statutory Therefore, timely statutory dismiss is denied. denied. dismiss is Therefore, counsel respective Looking now to the the plaintiffs' plaintiffs' cross motion, this had advised respective counsel court had informally advised now to cross this court motion, Looking informally ' . with that this motion motion should have been filed in with this previously issued issued should have been this court's court's that this filed in conformity conformity previously defeñdañts' than a cross-motion. Scheduling Order as motion rather than However, as defendants' as a dispositive dispositive motion rather cross-motion. as Order However, Scheduling done and had had done which to respond counsel had been been provided provided additional time in to to cross-motion, and counsel additional time in which respond to the the cross-motion, had That matter would so, court further further informed informed counsel that would be be considered on its merits. That counsel that the the matter considered on its merits. this court so, this the the being said, upon this court having concluded that the Penrose drain is a foreign opject, the this court that Penrose drain is a foreign upon concluded object, said, having being plaintiffs' part of Absent plaintiffs' motion motion seeking to find liability on the part of Pfeiff is si igitur hoc, quod. Absent on the Pfeiff is si igitur quod to find hoc, seeking liability not have of negligence on the part of Pfeiff the drain would not within the the body body of the part would have remained remained within negligence on of Pfeiff the Penrose Penrose drain the plaintiff.. · the plaintiff. of counsel, and given consideration to the the submission submission and upon due consideration and Therefore, upon having given due to and argument argument of counsel, Therefore, having New York, it is is of relevant decisional law of of the the State upon this court's court's review review of upon this relevant and decisional statutory and law State ofofNew it York, statutory plaintiffs' of motion et al., dismissal ORDERED, that the the motion of Defendants Pfeiff, et dismissal of the the plaintiffs' that of Defendants Pfeiff, al., seeking ORDERED, seeking and it it is is complaint as is denied; complaint as being being untimely untimely is and denied; of 6 Page Page 5 5 of 6 [* 5] 5 of 6 s INDEX NO. EF2019-1517 FILED: MADISON COUNTY CLERK 06/03/2021 10:18 AM NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 06/03/2021 ORDERED, that that the the ORDERED, plaintiffs' plaintiffs' motion motion seeking seeking aa finding finding ofof liability liability isis granted and will granted and an an inquest inquest will is44 be undertaken undertaken toto ascertain ascertain damages; damages; and and itit is be ORDERED, that aa conference conference shall be conducted with counsel telephonically o June June 11, 2021, that shall be conducted with counsel o 11, 2021, ORDERED, telephonically at 1:30 PM; PM; such be initiated initiated by by chambers. such to to be chambers. at 1:30 Enter. Enter. DATED: DATED: June 2, 2021 2, 2021 York Wampsville, New New York Wampsville, June Ho . Donald Ac S . Cerio, Cerio, Jr. Jr. Justice e e Court Court Justice e IN FILED FILED IN CLERK'S MADISON COUNTY CLERK'S OFFICE OFFICE COUNTY MADISON AM 10:18 3, 2021 2021 10:18AM Thursday, June June 3, Thursday, plaintiffs' 4 4This ·r., of the the fact this court court were takes note fact that, if this This court court takes note of even if were toto dismiss dismiss the the plaintiffs' that, even with cross-motion as being the court's cross-motion as being inin both both form form and and filing filing improper improper and and inconsistent inconsistent with the court's would denied. This court Pfeiff Scheduling Order, the the relief relief sought sought by by Defendant Defendant Pfeiff would be be denied. This court would would have have Order, Scheduling Pfeiff's considered the the in opposition to Defendant Pfeiffs considered the responsive responsive submissions by the plaintiffs in opposition to Defendant submissions plaintiffs by motion the same to statute of limitations limitations and would would have undertaken motion to dismiss dismiss with with respect respect toto statute of and have undertaken the same analysis foreign reached the analysis and and reached the same same conclusion conclusion with with respect respect toto the the Penrose Penrose drain drain being being a foreign object. As s.uch, Defendant Pfeiff's motioil to would have achieved no different result. dismiss object. As Defendant Pfeiffs motion to dismiss would have achieved no different result. s.uch, of 6 6 . Page 66 of Page [* 6] 6 of 6

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