Opinion
# 2013-009-020 Claim No. 116929 Motion No. M-81961
12-20-2013
JENNIFER FLORES v. THE STATE OF NEW YORK
Claimant's attorney: FINKELSTEIN & PARTNERS, LLP BY: Thomas C. Yatto, Esq., and Marie M. DuSault, Esq., Of Counsel. Defendant's attorney: HON. ERIC T. SCHNEIDERMAN Attorney General BY: SMITH, SOVIK, KENDRICK & SUGNET, P.C. James D. Lantier, Esq., and Brady J. O'Malley, Esq. Of Counsel.
Synopsis
Defendant's motion seeking permission to bring a late motion for summary judgment was denied under the dictates of Brill (2 NY3d 648) and Miceli (3 NY3d 725).
Case information
UID: 2013-009-020 Claimant(s): JENNIFER FLORES Claimant short name: FLORES Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116929 Motion number(s): M-81961 Cross-motion number(s): Judge: NICHOLAS V. MIDEY JR. FINKELSTEIN & PARTNERS, LLP BY: Thomas C. Yatto, Esq., and Claimant's attorney: Marie M. DuSault, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General BY: SMITH, SOVIK, KENDRICK & SUGNET, P.C. Defendant's attorney: James D. Lantier, Esq., and Brady J. O'Malley, Esq. Of Counsel. Third-party defendant's attorney: Signature date: December 20, 2013 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant has brought this motion seeking permission to bring a late motion for summary judgment and, if permission is granted, for an order of partial summary judgment dismissing the claim as it relates to the alleged malpractice of certified registered nurse anesthetist John Kirk.
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation of Brady J. O'Malley, Esq., with Exhibits (including Memorandum of Law as Exhibit A) 1, 2
Affirmation in Opposition of Marie DuSault, Esq., with Exhibits (including Affidavit of Jennifer Flores, claimant, as Exhibit A) 3
Claimant's Memorandum of Law in Opposition 4
Reply Attorney Affirmation, with Exhibits (including Reply Memorandum of Law as Exhibit B) 5
In this claim, which was filed and served on June 1, 2009, claimant seeks damages for medical malpractice for injuries allegedly suffered by her during a thyroidectomy surgery, which was performed on January 31, 2008 at the State University of New York, Upstate Medical University ("Upstate"). Claimant alleges that during this procedure she developed compartment syndrome, which caused swelling in her left arm and hand, and required immediate additional surgery and treatment. Claimant alleges that the compartment syndrome resulted from the improper administration of anesthesia, which had been given intravenously into her left arm and hand.
The defendant was originally represented by the Attorney General. Two of the doctors involved in claimant's surgery, Dr. Robert Lambert (the surgeon) and Dr. Winnie Cheung (the anesthesiologist), were also sued individually in Supreme Court and were represented by independent counsel, Gale & Dancks (Max Gale, Esq.).
During the deposition of Dr. Cheung on December 1, 2010, however, new information was obtained indicating that CRNA John Kirk, a nurse anesthetist from the same medical services group as Dr. Cheung, had been directly involved in claimant's care during the surgical procedure, and had been directly involved in the administration of the intravenous anesthesia. As a result, Attorney Gale was faced with a conflict of interest and was unable to represent the interests of Mr. Kirk, since he already represented Dr. Cheung from the same medical services group. At some point thereafter, the law firm of Smith, Sovik, Kendrick & Sugnet, P.C. (James Lantier, Esq.) was retained to represent Mr. Kirk individually, and Mr. Lantier represented Mr.Kirk at his deposition for this claim which was held on August 15, 2011. Eventually, this law firm was substituted as counsel for the defendant on May 29, 2012.
A note of issue and certificate of readiness was filed with the Clerk of the Court of Claims on October 27, 2011, prior to the date on which the Smith, Sovik law firm filed its substitution of counsel for the defendant.
This claim had originally been assigned to my colleague, Hon. Diane C. Fitzpatrick. Subsequent to the service and filing of the note of issue, Judge Fitzpatrick had to recuse, and this claim (and motion) has been re-assigned to me.
The Court must first determine whether defendant should be granted permission to bring this summary judgment motion. Pursuant to CPLR 3212 (a), a motion for summary judgment may be made at any time after issue is joined, but unless the court sets a different date (which may not be earlier than 30 days after the note of issue is filed), the last date to make a dispositive motion is 120 days after filing of the note of issue, "except with leave of court on good cause shown."
Although CPLR 3212 (a) was amended to add this provision in 1996 (effective January 1, 1997), it was regularly ignored until the 2004 Court of Appeals decision in Brill v City of New York (2 NY3d 648 [2004]). In Brill, even though the motion for summary judgment was meritorious and there was no apparent prejudice resulting from the delay in making the application, the Court of Appeals determined that the "good cause" requirement of CPLR 3212 (a) required the movant to establish "a satisfactory explanation for the untimeliness," and that "[n]o excuse at all, or a perfunctory excuse," could not be considered "good cause" (id. at 652).
Shortly thereafter, in Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004], the Court re-emphasized its holding in Brill, and determined once again that even a meritorious motion, if made after the 120-day time limitation established by CPLR 3212 (a), cannot be entertained unless good cause is established.
Defendant's counsel takes the position that since the 120-day time period for instituting this summary judgment motion had already expired by the time his substitution as counsel for the defendant was finalized and filed with the Court, this fact alone establishes "good cause" and constitutes a satisfactory explanation for the untimeliness in bringing this motion. Defense counsel asserts that since he was not substituted as counsel until approximately seven months after the note of issue had been filed, there was no possibility that he could have brought this summary judgment motion within the 120 days after the filing of the note of issue as required by CPLR 3212 (a).
Defense counsel further argues that since no trial date had yet been established, claimant would suffer no prejudice whatsoever if the Court granted his request and allowed this summary judgment motion to proceed.
Although defense counsel is correct in stating that he was not substituted as counsel for the defendant until seven months after the note of issue had been filed, he has offered no explanation as to why his representation was not formalized until that time. In other words, it is clear to this Court that Nurse Kirk's involvement in the alleged malpractice became known (at the latest) on December 1, 2010, during the deposition of Dr. Cheung. Furthermore, it is clear that Mr. Lanteir represented Nurse Kirk at his deposition on August 15, 2011 (and the appearance of defendant's counsel [at that time] was also noted).
Therefore, although Nurse Kirk's involvement was discovered on December 1, 2010, there was a period of approximately two months from the date of his deposition (August 15, 2011) until the note of issue was filed (October 27, 2011), and another seven months thereafter until the substitution of counsel was filed with the Court (May 29, 2012). More significantly, the defendant during this time was continuously represented by able counsel, and no explanation has been provided as to why a summary judgment motion, if desired, was not instituted by counsel within the time frames dictated by CPLR 3212 (a).
Since a change of counsel has been held to be a "perfunctory" excuse (Hurley v Best Buy Stores, L.P., 71 AD3d 559 [1st Dept 2010]; Baldessari v Caines, 61 AD3d 904 [2d Dept 2009]; Breiding v Giladi, 15 AD3d 435 [2d Dept 2005]), the Court finds that the substitution of counsel, made seven months after the filing of the note of the issue does not, in and of itself, constitute "good cause."
Furthermore, the absence of any prejudice to the claimant does not constitute good cause (Gibbs v McRide Cab Co., 10 AD3d 671 [2d Dept 2004]).
Therefore, without examining the issue of whether defendant has presented a meritorious motion for summary judgment, it is the determination of this Court that it may not entertain such a motion under the dictates of Brill (2 NY3d 648), and Miceli (3 NY3d 725).
It is therefore,
ORDERED, that motion No. M-81961 is hereby DENIED; and it is further
ORDERED, that this claim will be placed on the Court's next available calendar call for purposes of scheduling a trial date.
December 20, 2013
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims