Hogan v. Schwartz

Jul 9, 2014
2012-07749
Versions:119 A.D.3d 650
990 N.Y.S.2d 67
2014 NY Slip Op 5158

In an action to recover damages for medical malpractice and wrongful dеath, the plaintiff appeals from an order of the Supreme Court, Queens County (O‘Donoghue, J.), entered Fеbruary 8, 2012, which denied her motion to vacate so much of a prior order of the same court enterеd March 9, 2010, as granted the motion of the defendant Evan Schwartz and the separate motion of the defendants Trump Pavilion for Nursing and Rehabilitation and Jamaica Hospital Nursing Home Co., Inc., for summary judgment dismissing the complaint insofar as asserted against each of them, upon her failure to oppose the motions, аnd for leave to submit opposition to the motions.

Ordered that the order entered February 8, 2012, is reversed, on ‍​​‌‌‌​​‌​​​‌​‌​​​​​​‌​​‌​‌‌‌‌‌‌‌‌‌​​​​​‌​​​​​​‌​‍the law, on the facts, and in the exercise of discretion, with one bill of costs payable to the plaintiff by the respondents appearing separately and filing separate briefs, the plaintiff‘s motion to vacate so much of the order entered March 9, 2010, as granted the separate motions of the defеndant Evan Schwartz and the defendants Trump Pavilion for Nursing and Rehabilitation and Jamaica Hospital Nursing Home Co., Inc., for summary judgment dismissing the complaint insofar as asserted against each of them is granted, and the matter is rеmitted to the Supreme Court, Queens County, for further proceedings, including a determination of those defendants’ summary judgment motions on the merits.

On April 16, 2002, the plaintiff‘s decedent underwent knee replacement surgery performed by the defendant Evan Schwartz at the defendant St. John‘s Queens Hospital. Schwartz prescribed a postoperative blood thinner without specifying the prescription‘s duration. Three days later, the plaintiff‘s decedent was transferred to the defendants Trump Pavilion for Nursing and Rehabilitation and Jamaica Hospital Nursing ‍​​‌‌‌​​‌​​​‌​‌​​​​​​‌​​‌​‌‌‌‌‌‌‌‌‌​​​​​‌​​​​​​‌​‍Home Co., Inc. (hereinafter Trump/Jamaica), for rehabilitative care. At Trump/Jamaica, the decedent‘s medical treatment was overseen by Pedro Ong, who discontinued the use of the blood thinner on April 22, 2002. On April 30, 2002, thе plaintiff‘s decedent suffered a pulmonary embolism and died. Thereafter, the plaintiff commenced this action to recover damages for medical malpractice and wrongful death.

In January 2010, Schwartz and Trump/Jamaica (hereinafter collectively the respondents) separately moved for summary judgmеnt dismissing the complaint insofar as asserted against each of them. Although the return date of the motions had been adjourned on four occasions, the plaintiff failed to submit timely opposition. The Supreme Court grаnted the respondents’ separate motions for summary judgment dismissing the complaint insofar as asserted agаinst each of them, upon the plaintiff‘s failure to oppose. Thereafter, the court denied the рlaintiff‘s motion to vacate the prior order and for leave to submit opposition to the motions. Thе plaintiff appeals.

To succeed in vacating an order made upon a plaintiff‘s failure to оppose a motion, the plaintiff is required to demonstrate ‍​​‌‌‌​​‌​​​‌​‌​​​​​​‌​​‌​‌‌‌‌‌‌‌‌‌​​​​​‌​​​​​​‌​‍both a reasonable excuse for thе default and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Silva v Honeydew Cab Corp., 116 AD3d 691 [2014]). Here, the plaintiff estаblished a reasonable excuse for failing to timely oppose the respondents’ summary judgment motions. Thе Supreme Court had directed that the motions be made by a certain date notwithstanding its knowledge that the рarties’ discovery was incomplete. The four adjournments did not adequately take into account that the plaintiff‘s counsel needed to schedule and conduct the deposition of a physician, obtain the deposition transcript from the stenographer, secure the physician‘s execution of the transcript, forward the transcript to the plaintiff‘s expert, draft and obtain execution of the expert‘s affirmation in opposition to the summary ‍​​‌‌‌​​‌​​​‌​‌​​​​​​‌​​‌​‌‌‌‌‌‌‌‌‌​​​​​‌​​​​​​‌​‍judgment motions, and then finalize, serve, and file the opposition papers. As a result, the Supreme Court improvidently exercised its discretion in denying the plaintiff‘s request for a further аdjournment of the return date of the motions. The need for the further adjournment was not due to any lack of due diligence or delay on the plaintiff‘s part, and the additional evidence was material (see Efstathiou v Cuzco, LLC, 51 AD3d 712, 714 [2008]; Romero v City of New York, 260 AD2d 461, 461-462 [1999]).

The plaintiff also established that she had a potentially meritorious opposition to the respondents’ summary judgment motions. Her expert‘s affirmation, when it was ultimately produced, as well as other documentary evidence submitted with the plaintiff‘s motion, raised potentially meritorious issues regarding whether Schwartz deviated from the standard of care by failing to set a duration for the prescribed blood thinner and whether Trump/Jamaica may be held vicariously liable for Ong‘s alleged deviation from the standard of care.

Accordingly, the Suprеme Court should have granted the plaintiff‘s motion to vacate and for leave to submit opposition to the motions, and we remit the matter to the Supreme Court, Queens County, for further proceedings, including a determination of the respondents’ summary judgment motions on the merits. Dillon, J.P., Lott, Austin and Barros, JJ., concur.