Kaufman v. BauerKaufman v. Bauer
Lead Opinion
OPINION OF THE COURT
Ordеr entered October 23, 2003 reversed, with $10 costs, plaintiffs motion to restore the action to the trial calendar is denied and the complaint dismissed.
Plaintiff commenced the within medical malpractice action in Supreme Court in 1996, concerning events alleged to have occurred in 1993. The record indicates, and it is not seriously disputed, that a note of issue was served and filed in or around February 1997; that the case was trаnsferred to Civil Court pursuant to CPLR 325 (d) on June 15, 2000, when plaintiffs counsel was unable to proceed on the “final” adjourned Supreme Court trial date; and that on July 9, 2001, following motion practice involving plaintiffs failure to undergо an independent medical examination, the case was marked off the Civil Court trial calendar on defendants’ consent, with a notation on the court file indicating “restore on stip . . . [defendant] needs eсhocardiagram.” In August 2003, without yet providing the contemplated medical exchange,
When an action has been marked off the trial calendar and not restored within one year, a plaintiff seeking restoral must demonstrate a meritorious cause of action, a reasonable excuse for the delay in seeking to restore the action, the absence of prejudice to the opposing parties, and a lack of intent to abandon the action (see 22 NYCRR 208.14 [c]; Williams v A&S Dept. Store,
In this case, plaintiff failed to make the requisite showing as to three of the four requirements. First and foremost, the unsigned and redaсted affirmation submitted by plaintiffs medical expert, even if considered' (see Fuller v Tae Kwon,
“In an action to recover damages for medical malpractice, the affidavit of merit [accompanying a motion to restore] must be by a physician or other qualified expert, and must state with specificity the expert’s observations as to procedures or treatments performed and the alleged deviations from acceptable standards of medical care” (Yousian v New York Med. Ctr. Hosp. of Queens,277 AD2d 449 [2000]).
The physician’s affirmation supplied by plaintiff was vague and conclusory, failing to allege with requisite specificity the acts or omissions allegedly constituting malpractice or the causal relation between defendants’ unparticularized medical improprieties and plaintiffs injuries (see Jackson v Bronx Lebanon Hosp. Ctr.,
“As has been elsewhere observed (Sortino v Fisher, [20 AD2d 25 ], at pp 28, 31-32), there is an intimate relation between an action’s merit and the fact of its neglect. Where, as here, a long-pending action is not . . . shown to be meritorious, the inference is very strong that it has been neglected for its meager promise.” (Bergan v Home for Incurables,124 AD2d at 519 .)
For her “reasonable excuse,” plaintiffs counsel points to a variety of factors, including a claimed “oversight” in “preserving]” the diary entry of the July 9, 2001 mark-off date, the illness of the office secretary “who would follow such matters,” “personnel changes” resulting from the secretary’s illness, and counsel’s stated, but unfounded belief that the restoral motion need not be made within one year in view of the court’s (cryptic)
Finally, plaintiff did not adequately counter the defendants’ showing that their ability to defend the action has been impaired by the death or unavailability of several material witnesses, nor did plaintiff otherwise disprove that defendants were prejudiced by the delay. In these circumstances, where neаrly a decade had elapsed between the occurrence of the alleged malpractice and the filing of plaintiffs motion to restore, the likelihood of prejudice is apparent since “[m]emories of [surviving] witnesses fade with the substantial passage of time and may not be reliable” (Krantz v Scholtz,
Notes
Although defense counsel wrote to plaintiffs attorney in January 2002 inquiring as to the status of the echocardiagram, plaintiff did not produce an echocardiagraphy report until September 25, 2003, more than 21 months later and roughly six weeks after filing her restoral motion.
Dissenting Opinion
(dissenting). I respectfully dissent. The issue on this appeal is whether plaintiff made a sufficient showing to permit restoration of her case to the trial calendar. I agree with the Civil Court that she did and would therefore affirm the order and permit plaintiff to have her day in court.
Contrary tо the position advanced by the majority, the redacted affirmation of a board certified surgeon submitted by plaintiff is sufficient to establish possible merit to plaintiff’s
“the failure to properly repair all abdominal hernias in the form of two very large, supra umbilical mid-line ventral hernias and one umbilical hernia was the proximate cause of the plaintiff suffering abdominal wall prolapse, persistent ventral hernia in epigastrium, and the necessity for further surgical intervention, causing abdominal scarring and injuries that are permanent in nature”
that is sufficiently specifiс and detailed to establish possible merit. The majority’s reliance on Jackson v Bronx Lebanon Hosp. Ctr. (
Plaintiff has demonstrated a reasonable excuse for the failure to timely move to restore the case, namely, esophageal cancer of the attorney’s secretary who would follow the case and corresponding personnel changes in the law firm, hardly “a vaguely described species of law office failure” as characterizеd by the majority. (See Civello v Grossman,
“ ‘[w]hile counsel might be faulted for failing to keep track of the status of the case, such an oversight amounts to law office failure, which may be accepted as an excuse for delay’ (Muriel v. St. Barnabas Hosp.,3 AD3d 419 [1st Dept 2004]). ‘Counsel’s mistake should not inure to the detriment of his innocent client’ (Werner v. Tiffany & Co.,291 AD2d 305 , 306 [1st Dept 2002]).”
The majority’s description of the history of this action as “plaintiff progressed no further than having her case marked ‘ON’ and ‘OFF’ several calendars” exaggerates the record. Initially, I note that not all of the delay in this matter is shown to be attributable to neglect, but rather, part of the delay is attributed to plaintiff’s medical condition, particularly, a stroke which she suffered in 1999.
Nor do I find, as does the majority, that defendants have adequately shown that their ability to defend the action has been impaired by the death or unavailability of witnesses. Plaintiff has refuted defendants’ assertion that the now deceased Dr. Gelernt is a named defendant. He merely was a member of the professiоnal corporation, “Isadore Kreel, M.D., Irwin M. Gelernt, M.D., Joel J. Bauer, M.D., Barry A. Salky, M.D., PC.,” and is not shown to have been directly involved in the treatment or malpractice at issue in this lawsuit. Plaintiff has also refuted defendants’ assеrtion that the resident who assisted in the subject surgery cannot be located. Defendants have not demonstrated sufficient prejudice from the alleged “faded memory” of Dr. Isadore Kreel (who is not shown by admissible еvidence to have had a memory of the incident described in the medical record when the action was marked off the calendar) and the statement of defendants’ attorney that there are other “prior and subsequent treating physicians who will likely experience a similar memory defect” is sheer speculation. The record is devoid of evidence, such as affidavits from those individuals, to support the claim that their memories have faded to such a degree that respondent’s ability to maintain a defense has been unduly undermined. (See Welch v Board of Educ. of Saratoga Cent. School Dist.,
McCooe and Gangel-Jacob, JJ., concur; Suarez, EJ., dissents in a separate memorandum.