KAUFMAN v. BAUER (2005)

Order entered October 23, 2003 (Eileen A. Rakower, J.) reversed, with $10 costs, plaintiff's 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 transferred to Civil Court pursuant to CPLR § 325-d on June 15, 2000, when plaintiff's counsel was unable to proceed on the “final” adjourned Supreme Court trial date;  and that on July 9, 2001, following motion practice involving plaintiff's failure to undergo 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 echocardiagram”.   In August 2003, without yet providing the contemplated medical exchange,^* plaintiff moved to restore the action to the trial calendar.

 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, 5 Misc.3d 140(A), 2004 WL 2964000 [App. Term, 1st Dept.2004];  Mester v. Cattani, 4 Misc.3d 132(A), 2004 WL 1517405 [App. Term, 2d Dept.2004];  see also CPLR 3404).   Each criterion must be satisfied for restoral to be granted after expiration of the one-year period (see Katz v. Robinson Silverman Pearce Aronsohn & Berman, L.L.P., 277 A.D.2d 70, 74, 717 N.Y.S.2d 13 [2000] ), and this is so whether the case was marked off on consent (see e.g. Goldstein v. Block, 7 A.D.3d 669, 777 N.Y.S.2d 180 [2004];  Gray v. Cuttita, 281 A.D.2d 785, 722 N.Y.S.2d 289 [2001];  M.J. Williams Corp. v. Roma Fragrances and Cosmetics, Ltd., 166 A.D.2d 327, 561 N.Y.S.2d 1 [1990] ) or whether the parties agreed that restoral would be unopposed (see Bergan v. Home for Incurables, 124 A.D.2d 517, 508 N.Y.S.2d 434 [1986] ).

 In this case, plaintiff failed to make the requisite showing as to three of the four requirements.   First and foremost, the unsigned and redacted affirmation submitted by plaintiff's medical expert, even if considered (see Fuller v. Tae Kwon, 259 A.D.2d 662, 686 N.Y.S.2d 831 [1999] ), was insufficient to demonstrate merit.  “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 A.D.2d 449, 716 N.Y.S.2d 695 [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 plaintiff's injuries (see Jackson v. Bronx Lebanon Hosp., 7 A.D.3d 356, 775 N.Y.S.2d 859 [2004];  Nepomniaschi v. Goldstein, 182 A.D.2d 743, 744, 582 N.Y.S.2d 761 [1992];  Barton v. Jablon, 181 A.D.2d 755, 756, 581 N.Y.S.2d 101 [1992];  Bergan v. Home for Incurables, 124 A.D.2d at 519, 508 N.Y.S.2d 434).   Inadequate in this regard were plaintiff's expert's unamplified assertions that defendants collectively failed to “properly examine” plaintiff or to “utilize proper surgical technique” in connection with the underlying hernia repair surgery-blunderbuss allegations of malpractice which provide no hint, much less evidentiary detail, as to any specific, identifiable professional departure(s).  “As has been elsewhere observed (Sortino v. Fisher [20 A.D.2d 25], at pp. 28, 31-32 [245 N.Y.S.2d 186] [1963] ), 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 A.D.2d at 519, 508 N.Y.S.2d 434.)

For her “reasonable excuse,” plaintiff's counsel points to a variety of factors, including a claimed “oversight” in “preserv[ing]” 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) calendar notation that the case would be “restore[d] on stip.”   Notably absent from plaintiff's counsel's supporting affirmation is any explanation of the nature or circumstances of the claimed “diary” error-how it occurred or who was responsible-or any indication that the “personnel changes” said to have contributed to counsel's failure to properly keep track of plaintiff's case caused similar confusion in other pending matters.   On balance, counsel's bare and seemingly contradictory assertions-coupling a vaguely described species of law office failure with counsel's professed misapprehension of the law-were insufficient to justify the substantial (25-month) delay in moving to restore the action to the trial calendar (see Habib v. Miller, 233 A.D.2d 480, 650 N.Y.S.2d 285 [1996];  Civello v. Grossman, 192 A.D.2d 636, 596 N.Y.S.2d 464 [1993];  cf. Estevez v. Coleman, 15 A.D.3d 226, 791 N.Y.S.2d 4 [2005] ).   It bears emphasis that during the protracted history of this litigation, plaintiff progressed no further than having her case marked “ ON” and “OFF” several calendars, and that this pattern of delay is relevant in determining whether plaintiff demonstrated a reasonable excuse (see Campos v. New York City Health and Hosp. Corp., 307 A.D.2d 785, 786, 763 N.Y.S.2d 292 [2003] ).

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 nearly a decade had elapsed between the occurrence of the alleged malpractice and the filing of plaintiff's 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, 201 A.D.2d 784, 785, 607 N.Y.S.2d 183 [1994], lv. dismissed 83 N.Y.2d 902, 614 N.Y.S.2d 383, 637 N.E.2d 274 [1994];  see Rodriguez v. Middle Atl. Auto Leasing, 122 A.D.2d 720, 723, 511 N.Y.S.2d 595 [1986], appeal dismissed 69 N.Y.2d 874, 514 N.Y.S.2d 723, 507 N.E.2d 317 [1987];  see also Carter v. City of New York, 231 A.D.2d 485, 647 N.Y.S.2d 28 [1996];  Civello v. Grossman, 192 A.D.2d at 636, 596 N.Y.S.2d 464).

DISSENTING MEMORANDUM

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 to 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 claim.   See Palermo v. Lord & Taylor, Inc., 287 A.D.2d 258, 260, 730 N.Y.S.2d 508, 510 (1st Dep't 2001) (motion to restore only requires a minimal showing of the potential merit of the cause of action, citing Enax v. New York Tel. Co., 280 A.D.2d 294, 295, 720 N.Y.S.2d 126, 127-128 [1st Dep't 2001] ).   Obviously, the surgeon was not present when the malpractice occurred and cannot give the type of detailed allegations which surgeons who performed or witnessed the operation would be in a position to give.   However, the surgeon states that the departures from good and accepted medical practice include, inter alia, “the failure to properly repair all abdominal hernias in the form of two very large, supra umbilical midline 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 specific and detailed to establish possible merit.   The majority's reliance on Jackson v. Bronx Lebanon Hosp., 7 A.D.3d 356, 775 N.Y.S.2d 859 (1st Dep't 2004) (physician's affirmation submitted in reply which did not address with requisite specificity the issue of causation or the alleged departure from acceptable medical practice);  Nepomniaschi v. Goldstein, 182 A.D.2d 743, 582 N.Y.S.2d 761 (2d Dep't 1992) (statement “that there was a deviation from accepted medical practice insufficient”);  Barton v. Jablon, 181 A.D.2d 755, 581 N.Y.S.2d 101 (2d Dep't 1992) (conclusory recitation of malpractice and neither describes the injury which the plaintiff sustained nor outlines with any particularity the manner in which the alleged professional departures purportedly caused that injury);  and Bergan v. Home for Incurables, 124 A.D.2d 517, 508 N.Y.S.2d 434 (1st Dep't 1986) (physician's affidavit of merit relies exclusively upon plaintiff's medical records, and is conclusory in the extreme) is misplaced, as each of those cases is distinguishable from the instant case, where a detailed affirmation with specific claims of departures is submitted.

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 characterized by the majority.   See Civello v. Grossman, 192 A.D.2d 636, 596 N.Y.S.2d 464 (2d Dep't 1993) (illness of an attorney may constitute a reasonable excuse for a default), citing Chery v. Anthony, 156 A.D.2d 414, 548 N.Y.S.2d 535 (2d Dep't 1989).   As this court held in Negron v. New York City Housing Authority, 2 Misc.3d 138(A), 784 N.Y.S.2d 922 (App. Term 1st Dep't 2004), “ ‘While 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 A.D.3d 419, 771 N.Y.S.2d 107 [1st Dep't 2004] ).  ‘Counsel's mistake should not inure to the detriment of his innocent client’ (Werner v. Tiffany & Co., 291 A.D.2d 305, 306, 738 N.Y.S.2d 326, 328 [1st Dep't 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 professional corporation, “Isadore Kreel, M.D., Irwin M. Gelernt, M.D., Joel J. Bauer, M.D., Barry A. Salky, M.D., P.C.,” and is not shown to have been directly involved in the treatment or malpractice at issue in this lawsuit.   Plaintiff has also refuted defendants' assertion 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 evidence 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 Central School Dist., 287 A.D.2d 761, 764, 731 N.Y.S.2d 94, 98 (3d Dep't 2001).

The motion to restore was properly granted and the order of Civil Court should be affirmed.

This constitutes the decision and order of the court.

FOOTNOTES

FOOTNOTE.   Although defense counsel wrote to plaintiff's 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.

PER CURIAM.

I concur.