PIERRE v. SUNRISE MEDICAL LABORATORIES (2026)

DECISION & ORDER

In an action to recover damages for medical malpractice and wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Consuelo Mallafre Melendez, J.), dated April 8, 2025.  The order denied the plaintiff's motion pursuant to CPLR 5019(a) to resettle a prior order of the same court (Bernard J. Graham, J.) dated January 27, 2021, and to restore the action to the trial calendar.

ORDERED that the order dated April 8, 2025, is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying that branch of the plaintiff's motion which was to restore the action to the trial calendar, and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed, with costs to the plaintiff.

The plaintiff's decedent (hereinafter the decedent) died on December 16, 2011, as a result of cervical cancer.  On May 2, 2013, the plaintiff commenced this action to recover damages for medical malpractice and wrongful death against, among others, the decedent's treating gynecologist, Peter Holden, Sunrise Medical Laboratories (hereinafter Sunrise), where Pap smear samples collected by Holden were interpreted, Sunrise employees Ning Cai and Golda Simpson, who interpreted the decedent's Pap smear samples in 2008, Sunrise employees Elisabeth Cappello and John LoFranco, who interpreted the decedent's Pap smear samples in 2009, and Sunrise employees Ellen J. Arkin and Sandra Abo, who interpreted the decedent's Pap smear samples in 2010.

After discovery, Holden, Cai, and Sunrise, Simpson, LoFranco, Cappello, Arkin, and Abo filed separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.  Before the motions were decided, the parties submitted a stipulation that was so-ordered by the Supreme Court, which discontinued with prejudice all causes of action asserted against Simpson and Cai, and certain causes of action asserted against Sunrise, LoFranco, and Cappello.  The stipulation did not discontinue the causes of action against Sunrise, Arkin, and Abo to recover damages for medical malpractice and wrongful death arising from the interpretation of the 2010 Pap smear test or the causes of action against Sunrise, Cappello, and LoFranco to recover damages for wrongful death arising from the interpretation of the 2009 Pap smear test.  Further, pursuant to the stipulation, Sunrise, Simpson, LoFranco, Cappello, Arkin, and Abo withdrew those branches of their motion which were for summary judgment dismissing the aforementioned causes of action that were not being discontinued.

In an order dated January 27, 2021, the Supreme Court decided Holden's motion for summary judgment dismissing the complaint insofar as asserted against him.  The court included a footnote in the order which incorrectly stated that the plaintiff had discontinued, with prejudice, all claims against defendants other than the movant, rather than some claims.  The order granted Holden's motion, and a judgment was entered on April 1, 2021, in favor of Holden and against the plaintiff, in effect, dismissing the complaint insofar as asserted against Holden.

At some point after Holden's motion for summary judgment was decided, the action was marked “disposed” by the Supreme Court, and the plaintiff moved pursuant to CPLR 5019(a) to resettle the January 27, 2021 order by correcting the mistake in the footnote, and to restore the action to the trial calendar.  In an order dated April 8, 2025, the court denied the motion.  The plaintiff appeals.

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's motion which was to restore the action to the trial calendar.  Contrary to the court's conclusion, the January 27, 2021 order only decided Holden's motion for summary judgment dismissing the complaint insofar as asserted against him, as reflected in the subsequent judgment entered in his favor, upon the order.  There is nothing in the January 27, 2021 order which indicates that the motion court, sua sponte, considered and directed dismissal, on the merits, of any causes of action asserted against other defendants.  As there is no evidence that the plaintiff intended to abandon those causes of action which were not discontinued by stipulation, and the action was removed from the trial calendar through no fault of the plaintiff, apparently due to administrative error, the action should have been restored to the trial calendar (cf.  Jankowicz v New York City Health & Hosps.  Corp., 284 A.D.2d 502, 503).

However, we conclude that the branch of the plaintiff's motion which was pursuant to CPLR 5019(a) to resettle the January 27, 2021 order to correct the footnote was properly denied, although for a reason different from that relied upon by the Supreme Court.  It was unnecessary for the court to exercise its discretion to correct a mistake in the nondispositive recitation of facts tangential to the motion being determined in the order (see id.).

IANNACCI, J.P., DOWLING, LANDICINO and LOVE, JJ., concur.