| Cadichon v Facelle |
| 2010 NY Slip Op 02058 [71 AD3d 520] |
| March 18, 2010 |
| Appellate Division, First Department |
| Juliette DeJoie Cadichon et al., Appellants, v ThomasFacelle, M.D., et al., Respondents. |
—[*1] Martin Clearwater & Bell LLP, New York (Stewart G. Milch of counsel), for ThomasFacelle, M.D., respondent. Steinberg, Symer & Platt, LLP, Poughkeepsie (Ellen Fischer Bopp of counsel), for GoodSamaritan Hospital, respondent. McAloon & Friedman, P.C., New York (Timothy J. O'Shaughnessy of counsel), forMontefiore Medical Center, respondent. Clausen Miller PC, New York (Edward Tobin of counsel), for Louis May, M.D.,respondent.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered August 26, 2008, whichdenied plaintiffs' motion to vacate the dismissal of the action pursuant to CPLR 3216, affirmed,without costs. Order, same court and Justice, entered January 29, 2009, to the extent it deniedplaintiffs' motion to renew, affirmed, without costs. Appeal from so much of the January 29,2009 order as denied plaintiffs' motion to reargue, unanimously dismissed, without costs, astaken from a nonappealable order.
It is well settled that to vacate the dismissal of an action dismissed pursuant to CPLR 3216, aplaintiff must demonstrate both a reasonable excuse for the failure to comply with the 90-daydemand to serve and file a note of issue and a meritorious cause of action (Walker v City of New York, 46 AD3d278 [2007]). Plaintiffs failed to offer a reasonable excuse for their failure to file the note ofissue. Indeed, while plaintiffs contended that defendants' noncompliance with their discoveryobligations was to blame, and that such noncompliance was preventing them from filing a noteof issue, "[they] had [their] remedies during the lengthy period of general delay (CPLR 3124,3126)" (McDonald v Montefiore Med.Ctr., 60 AD3d 547 [2009]).
While we do not disagree with the dissent's conclusion that some of the delay wasoccasioned by defendants, our decision rests on the record and controlling law which requiredplaintiffs to take action. Once served with a 90-day demand, plaintiffs were required to eitherseek an extension to comply with the 90-day notice, move to vacate the same (Brady v Benenson Capital Co., 2AD3d 382, 382 [2003], lv denied 2 NY3d 702 [2004]) or file a note of issue (CPLR3216 [b] [3]). Plaintiffs did none of these things and their case was thus properly dismissed.Subsequent to dismissal, vacatur required a quantum of proof which plaintiffs utterly failed tosatisfy with their first motion, and which they were unable to cure with the their second motion.
Plaintiffs also impermissibly addressed the merits of their action for the first time on reply(Migdol v City of New York, 291 AD2d 201 [2002]; Lumbermens Mut. Cas. Co. vMorse Shoe Co., 218 AD2d 624, 625-626 [1995]; Ritt v Lenox Hill Hosp., 182AD2d 560, 562 [1992]).
The excuse of law office failure offered on the motion to reargue and renew did notconstitute a reasonable excuse (Walker, 46 AD3d at 280-281). Further, plaintiffs failedto explain why they failed to present the excuse of law office failure on the original motion.
We have considered plaintiffs' remaining contentions and find them unavailing.Concur—Gonzalez, P.J., McGuire and RomÁn, JJ.
Saxe and Manzanet-Daniels, JJ., dissent in a memorandum by Manzanet-Daniels, J., asfollows: I respectfully dissent. Plaintiffs demonstrated a reasonable excuse for their failure tocomply with the court-issued 90-day demand, as well as a meritorious cause of action.
The record shows that the discovery delays in this consolidated action were occasionedprincipally by defendants. At the time the court sua sponte dismissed the action for failure toprosecute, the depositions of Dr. May and Dr. Facelle had yet to take place, and defendants hadyet to designate a physician to perform an independent medical examination (IME) of the injuredplaintiff, as they had been ordered to do on May 3, 2007. The so-ordered stipulation entered thatday provided that the physician defendants were to appear for examinations before trial (EBTs)on or before June 26 and July 10, 2007, respectively, and that the hospital defendants were todesignate representatives to appear for EBTs on or before August 21, 2007. Defendants wereordered to designate a physician to perform the IME and to conduct the IME by July 16, 2007.The so-ordered stipulations stated that there were to be no further adjournments of the IME andthat defendant Dr. May was to appear by July 10, 2007, without adjournment. Plaintiff wasdirected to file the note of issue on or before December 27, 2007. Defendants provided none ofthe court-ordered discovery, despite warnings that there would be no further adjournments. Adefendant who fails to comply with a plaintiff's legitimate discovery demands, and thus preventsthe filing of the note of issue, cannot seek dismissal of a plaintiff's complaint for failure to file anote of issue in response to a "90-day demand" (see Donegan v St. Joseph's Med. Ctr.,283 AD2d 152 [2001]).
Since the discovery delays herein were caused by defendants, the case should not have beendismissed, even in the absence of a medical affidavit demonstrating the merit of the action(see Donegan, 283 AD2d at 153). In any event, the merit of the action was demonstrated,inter alia, through the affirmation of plaintiffs' physician, board certified in internal medicine andgastroenterology, who opined that plaintiff, during procedures performed in July 2002, sufferedbiliary injuries caused by deviations from standards of good and accepted medical practice byDr. May and Dr. Facelle. Plaintiff's expert stated that Dr. May created a "surgical emergency"during a routine procedure by passing a wire and catheter through the distal common bile duct,rather than performing a sphincterotomy to extract a stone in the duct, as he had been directed todo by Dr. Facelle. The catheter passed by Dr. May perforated plaintiff's abdominal cavity, [*2]occasioning the "surgical emergency" and resulting in numerouscomplications including blood loss, transection of the bile duct, hepatic necrosis,hyperbilirubinemia, acute renal insufficiency and hepatic encephalopathy. Plaintiff's expertfurther opined that rather than performing an immediate repair of the bile duct, Dr. Facelleshould have "pursued non-operative drainage of the bile duct, drainage of the peritoneal cavity,and performed bile duct repair" at a later date when plaintiff's peritonitis had resolved. Plaintiff'sexpert opined that plaintiff's multiple subsequent hospitalizations and development of secondarybiliary cirrhosis and sequelae were caused by the biliary injuries she suffered in July 2002, andopined that there was a high likelihood that plaintiff will require a liver transplant in theintermediate future. In his discharge summary, dated June 27, 2002, Dr. Facelle states, inter alia,that Dr. May passed the catheter "against [his] explicit instructions not to further probe the duct,but to stop with just doing a sphincterotomy," since Dr. Facelle was concerned about possibleinjury to the duct.[FN*]
On the motion to renew, counsel explained that the conference resulting in the May 3, 2007so-ordered stipulation was handled by an "of counsel" attorney, and thus, the December 27, 2007deadline set by the court for the filing of the note of issue was not entered into the firm's calendarsystem as would ordinarily be done. Counsel further stated that had he known about thedeadline, he would have moved for an extension of time to file the note of issue and/or to strikedefendants' answers based on defendants' failure to comply with discovery. I would hold that thisfailure to calendar the date was, under the circumstances, excusable law office failure (see Kaufman v Bauer, 36 AD3d481 [2007] [deadline missed due to personnel change at law firm]; Werner v Tiffany &Co., 291 AD2d 305 [2002] [counsel misplaced calendar and in reconstructing commitmentsforgot deadline]), particularly given defendants' delays and plaintiffs' inability, as a direct resultthereof, to certify that discovery was complete. While this case was decided before the effectivedate of the amendment to CPLR 205 (a), which provides that an action may not be dismissedunder CPLR 3216 unless the judge sets forth "on the record the specific conduct constituting theneglect, which conduct shall demonstrate a general pattern of delay in proceeding with thelitigation," it is not without significance that plaintiffs did not engage in a pattern of neglect.
While I agree with the motion court that the better practice would have been for plaintiffs tohave made a motion to compel discovery or for an extension of time to file the note of issue, thefailure to take these steps should not result in dismissal of a meritorious cause of action. It is[*3]the long established public policy of this State to decide caseson their merits (see Kaufman v Bauer, 36 AD3d at 483).
Footnote *: It is true that the present recorddoes not disclose an independent basis for the negligence of the hospital defendants. As plaintiffsnote, however, they have not yet had the opportunity to depose representatives of the hospitaldefendants. In any event, the showing of merit required on a motion to restore or to vacate adefault (to the extent such a showing is even required, since, as discussed supra, defendantsfailed to respond to plaintiffs' legitimate discovery demands and effectively prevented the filingof the note of issue) is minimal (see Palermo v Lord & Taylor, 287 AD2d 258 [2001]).