JOEY PHILIP v. NEW YORK FOUNDLING HOSPITAL KAI HUANG GARY PHILLIPS MARIANNA GOLDEN SHOLEH KAMALIAN DANIEL SILOVITZ MONTEFIORE NYACK HOSPITAL (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 006) 241, 242, 243, 244, 245, 246, 247, 248, 250, 251, 252, 253, 254, 255, 256 were read on this motion to/for AMEND CAPTION/PLEADINGS.

This is an action to recover damages for medical malpractice based on alleged departures from good and accepted practice, common-law negligence, and wrongful death, and pursuant to Public Health Law § 2801-d for purported violations of statutes and regulations governing nursing homes.¹ The defendant New York Foundling, formerly known as New York Foundling Hospital (NYF), moves pursuant to CPLR 3025(b) for leave to serve and file an amended answer adding, as an affirmative defense, that, pursuant to General Obligations Law § 15-108(a), the amount of any award that the plaintiff recovers against it must be set off by the greater of the total amount for which the plaintiff had settled his claims against the former defendants Montefiore Nyack Hospital and Marianna Golden, the former defendant Earl L. Zeitlin, the former defendants Gary M. Phillips, Sholeh Kamalian, and Daniel Silovitz, and the former defendant Kai Huang, or the equitable share of fault that a finder of fact may apportion to those defendants. The plaintiff opposes the motion in part, arguing that any setoff must be limited to the amount of consideration actually paid by the released tortfeasors, and should not be calculated on the released tortfeasors' equitable share of fault. The motion is granted, and the proposed amended answer that was attached as Exhibit E to NYF's motion papers, and which was uploaded to the New York State Court Electronic Filing system as Docket Entry No. 247, is deemed to have been served and filed nunc pro tunc as of August 21, 2026, the date that NYF made the instant motion.

Leave to amend a pleading is to be freely given absent prejudice or surprise resulting from the amendment, provided that the evidence submitted in support of the motion indicates that the proposed amendment may have merit (see CPLR 3025[b]; McCaskey, Davies and Assocs., Inc v New York City Health & Hospitals Corp., 59 NY2d 755 [1983]; 360 West 11th LLC v ACG Credit Co. II, LLC, 90 AD3d 552 [1st Dept 2011]; Smith-Hoy v AMC Prop. Evaluations, Inc., 52 AD3d 809 [1st Dept 2008]). The court must examine the sufficiency of the proposed amendment only to determine whether the proposed amended pleading is "palpably insufficient or clearly devoid of merit" (MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 500 [1st Dept 2010]; see Badesch v Fort 710 Assoc., L.P., 233 AD3d 604, 604 [1st Dept 2024]; Ferrer v Go New York Tours Inc., 221 AD3d 499, 500 [1st Dept 2023]).

In the instant action, the plaintiff alleged, initially, that NYF committed malpractice, and was liable both for common-law negligence and pursuant to Public Health Law § 2801-d, when it permitted his decedent, who was a resident there, to ascend a staircase unattended, after which he fell and sustained serious neurological and orthopedic injuries. He further asserted that several hospitals and individual healthcare providers who treated his decedent, both immediately after the fall and over the following months, committed medical malpractice. On December 20, 2023, the former defendants Montefiore Nyack Hospital and Golden together settled the plaintiff's claims against them for the sum of $650,000.00. On May 1, 2024, this court issued a decedent's compromise order approving that settlement. On February 6, 2024, this court approved the plaintiff's discontinuance of his claims against the former defendants Earl L. Zeitlin and Highland Medical, P.C., doing business as Rockland Neurological Associates. On August 11, 2026, the former defendants Phillips, Kamalian, and Silovitz collectively settled the plaintiff's claims against them for the sum of $175,000.00, and the former defendant Huang separately settled the plaintiff's claims against him for the sum of $175,000.00

Pursuant to General Obligations Law § 15-108(a), "[t]he original tort-feasors [are] liable not only for the injuries incurred by" the decedent as a result of his "fall but also for the aggravation of those injuries through the malpractice" of any subsequent healthcare provider who negligently treated him (Hill v St. Clare's Hosp., 67 NY2d 72, 78 [1986]; see Matter of Parchefsky v Kroll Bros., 267 NY 410, 412-413 [1935]; Milks v McIver, 264 NY 267, 270 [1934]; PJI 2:305).

"Such liability is, however, successive rather than joint, and the injured plaintiff cannot recover the same damages twice. It follows that an original wrongdoer held for all of the damages incurred by the person injured is subrogated to the latter's right to recover from the physician for the damages caused by his or her malpractice and that if the injured person recovers first from the physician, he may not thereafter recover from the original tort-feasor for the malpractice aggravation"

(Hill v St. Clare's Hosp., 67 NY2d at 82-83). Moreover, as set forth in General Obligations Law § 15-108(a), a release tendered by a plaintiff to a tortfeasor

" 'reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest'"

(id. at 83, quoting General Obligations Law § 15-108[a] [emphasis added]). "The reference to 'two or more persons liable or claimed to be liable in tort for the same injury' covers successive as well as joint tort-feasors" (Hill v St. Clare's Hosp., 67 NY2d at 83; see Mavashev v New York City Tr. Auth., 300 AD2d 552, 553-554 [2d Dept 2002]; Casey v State of New York, 119 AD2d 363, 367-368 [2d Dept 1986]).

Consequently, in the event that the plaintiff's secures a judgment against NYF, that defendant would be entitled to a set off of at least $650,000.00 as a consequence of the plaintiff's settlement with, and release of, Montefiore Nyack Hospital and Golden, $175,000.00 as a consequence of the plaintiff's settlement with, and release of, Phllips, Kamalian, and Silovitz, and an additional $175,000.00 as a consequence of the plaintiff's settlement with Huang, as well as a further consequence of his discontinuance of the action against Zeitlin. NYF has established that the proposed amendment to their answer is not palpably insufficient or clearly devoid of merit, and that no party would be surprised or prejudiced by the amendment.

As noted above, the plaintiff contends that NYF should only be permitted to amend its answer to assert a setoff of the amount actually tendered by the released tortfeasors, but should not be permitted to amend its answer to assert that it is entitled to a setoff of the released tortfeasors' equitable share of damages, should the court or a jury ultimately find that such an equitable share is greater than the amounts actually paid. In this respect, the plaintiff argued that NYF will not be able to prove that the released tortfeasors delayed in diagnosing his decedent's spinal cord injury or that any such delay was causally related to the decedent's injuries. The court concludes that the resolution of this contention should have been resolved pursuant to a timely noticed summary judgment motion. Even were the court to consider the plaintiff's opposition papers to constitute an application for summary judgment (see Fried v Jacob Holding, Inc., 110 AD3d 56, 64-65 [2d Dept 2013]; CPLR 2215) on the issue of whether the released tortfeasors did not delay in diagnosing his decedent's spinal cord injury or that any such delay was not causally related to the decedent's injuries, the court would be constrained to deny the application on the grounds that it was not timely made (see CPLR 3212[a]; Brill v City of New York, 2 NY2d 648, 652 [2004]; Buckner v City of New York, 9 Misc 3d 510, 514-515 [Sup Ct, NY County 2005]) and was not supported by the affirmation of an expert physician in any event. Hence, the determination of whether the released tortfeasors committed malpractice by delaying the decedent's diagnosis of a spinal cord injury, and whether any such malpractice caused or contributed to the decedent's injuries, will have to await the outcome of the trial on the merits of the action against NYF, at which the court anticipates that NYF may ask the court to instruct the jury to apportion fault between it and the settling defendants (see Matter of New York City Asbestos Litigation, 82 NY2d 342, 351-352 [1993]; Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332, 336, 340 [1993] [where jury's apportionment of fault between settling and non-settling defendants differed from the amounts that the settling defendants actually had paid, it is appropriate to apply the "aggregate" approach, "in which the totaled settlement amounts for all settling defendants are compared with the total of the corresponding apportioned shares and the higher of these totals is deducted from the damage award"]; Williams v Niske, 81 NY2d 437, 444-445 [1993] [non-settling defendant is not entitled to a setoff of both the total amount paid by settling defendants and a percentage reduction of that amount based on a jury's apportionment of fault]; Brunetti v Musallam, 59 AD3d 220, 222 [1st Dept 2009] [rejecting, as premature, motion court's summary allocation of fault under General Obligations Law § 15-108(a)]; McNally v Corwin, 30 AD3d 482, 485 [2d Dept 2006] [settlement by one defendant did not preclude non-settling defendants from attempting to establish, at trial, that the settling defendant was proportionately at fault and, if so, what the apportionment of fault should be]).

Accordingly, it is,

ORDERED that the motion is granted, the defendant New York Foundling, formerly known as New York Foundling Hospital, is granted leave to file and serve an amended answer in the form attached as Exhibit E to its motion papers and uploaded to the New York State Court Electronic Filing system as Docket Entry No. 247, and that amended answer is deemed to have been served and filed nunc pro tunc as of August 21, 2026.

This constitutes the Decision and Order of the court.

DATE 9/8/2026

JOHN J. KELLEY, J.S.C.

FOOTNOTES

1.   In an order dated March 13, 2026, this court granted NYF's motion for leave to reargue its prior motion for summary judgment and, upon reargument, awarded it summary judgment dismissing the Public Health Law § 2801-d cause of action insofar as asserted against it.

John J. Kelley, J.