Tracy v Vassar Bros. Hosp.,

130 A.D.3d 713, 13 N.Y.S.3d 226 [2d Dept., 2015]

This is another of the many cases about the distinction between ordinary negligence and medical malpractice, with their differing limitations periods. Ordinary negligence claims get a 3-year period, but med mal claims get only 2 ½, and so many plaintiffs with claims falling on the edge between the two seem to sue right in that 6-month gap, giving folks like me something to write about.

Here, the main actor was a surgeon named Panos, who operated on the plaintiff on February 5, 2009, at the defendant hospital. Plaintiff’s lawsuit was commenced on January 26, 2012, well beyond 2 ½ years and just before the expiration of 3 years. The hospital, of course, moved to dismiss on limitations grounds. Supreme Court denied the motion, holding that some of plaintiff’s claims sounded in ordinary negligence and were timely. As to the others, Supreme Court denied the motion as premature in advance of disclosure on the plaintiff’s claim to an equitable estoppel.

The plaintiff’s claim of estoppel was based on the idea that the hospital knew of Panos’ negligence, and that its failure to stop him constituted a fraud on the public. The invocation of the word “fraud,” however, is not sufficient to justify an equitable estoppel against the limitations defense. In this context, the fraud must in some way have concealed the malpractice so as to prevent the plaintiff from bringing suit. Therefore, the medical malpractice claims against the hospital should have been dismissed. So far, there is nothing remarkable here.

It is the claims which the court sustained as ordinary negligence which I find interesting. The cases have acknowledged the difficulty in distinguishing between malpractice and ordinary negligence, especially in the hospital context. To say that the distinction lies in whether the hospital’s negligence was in fulfilling some duty other than treating the patient does not always make the question any clearer (see, Weiner v Lenox Hill Hospital, 88 NY2d 784, 650 N.Y.S.2d 629 [1996]). “Here, the allegations in the complaint pertaining to the number of surgeries Panos was scheduling for any given day, the allegations that Vassar failed to establish procedures regarding the number of surgeries that could be scheduled for a given day, and the allegations that Vassar failed to investigate or respond to warnings and complaints from its employees regarding Panos’s practices generally, all sound in ordinary negligence rather than medical malpractice”. The court found that these allegations do not involve medical judgment or analysis regarding the plaintiff’s treatment.

Artibee v Home Place Corp.,

___ AD3d ___, ___ NYS3d ___, 2015 NY Slip Op 06556

Our supposedly Unified Court System is in fact notoriously fractured, with many courts of limited jurisdiction. This sometimes creates wholly unnecessary difficulties, and this case is one of them.

There were two joint tortfeasors involved in plaintiff’s accident, but because one of them was the State, plaintiff could not sue them both in the same court. The action against the State had to be brought separately in the Court of Claims. This is not only expensive for plaintiff, with obvious dangers of inconsistent verdicts, but presents the problem of apportioning fault between the tortfeasors. The problem is interesting as a technical exercise, perhaps, but the court system we have allows no good result. It would not arise if there were a single-tier trial court.

The plaintiff was driving on a state highway and was injured by a tree limb falling from the property of the present defendant. Plaintiff alleged that the State was also liable, for failing to maintain the trees adjoining the highway. Plaintiff was forced to commence parallel actions, suing the tree owner in Supreme Court, and the State in the Court of Claims. The tree owner claimed the benefits of Article 16 limited liability but this requires an apportionment between the tortfeasors. How is this to be accomplished if they are not joined in one action?

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One of the things I love about legal research is the way one issue leads to another. This series of posts started with two cases about motions for default judgments, and the jurisdictional consequences of failing to give notice where it is required. (Deutsche Bank Natl. Trust Co. v Gavrielova, Here and Paulus v Christopher Vacirca, Inc., Here) These discussions have already led to a side issue about marking motions “off calendar.” Here is another side issue, involving “informal appearances,” that is, actions which will be the functional equivalent of an appearance, even though the defendant has not made a formal appearance as specified in CPLR 320. That is, he has not served a formal notice of appearance, an answer, or a motion to dismiss.

Now, in both of our main cases, the defendants made a formal appearance by moving to dismiss under CPLR 3211 (a), but then failed to answer. They were therefore clearly entitled to notice of the motion for default judgments. Whether or not the defendants had appeared was not an issue. Reading some of the cases cited by these decisions, however, we come across fact patterns where the appearance was not so clear.

In some cases, the defendant’s “informal appearance” will entitle him to notice of a default motion. Since our recent cases have held that lack of notice renders the default judgment jurisdictionally defective (at least in the Second Department) a plaintiff who relies on the lack of a formal appearance and moves without notice may be unpleasantly surprised.

In others, it will be the defendant who is unpleasantly surprised, when he finds that his “informal appearance” has been sufficient to waive his objections to personal jurisdiction.

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Paulus v Christopher Vacirca, Inc.,

128 AD3d 116 [2d Dept., 2015]

I have posted twice on Deutsche Bank v Gavrielova: once on the main issue of notice to appearing defendants who are nonetheless in default of answering, and again on the side issue of marking motions off the motion calendar.

The case noted here is the precedent followed in Deutsche Bank, and re-reading it prompts further thoughts on the rationale for the holding, and to note a departmental conflict on the issue.

The essential question is why the lack of notice to an appearing defendant is a jurisdictional defect, and not a mere error. The significance of that distinction is that a mere error does not leave the default judgment subject to later attack under CPLR 5015 (a)(1). If the defaulting defendant lacks either a reasonable excuse or proof of a meritorious defense, a mere procedural error provides no path to vacating the judgment. A jurisdictional defect renders the judgment a nullity, vulnerable to attack at any time.

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Deutsche Bank Natl. Trust Co. v Gavrielova

___ AD3d ___, 2015 NY Slip Op 05907 [2d Dept., 2015]

An afterthought: I don’t think that the “defaulting” defendant in this case was in default at all.

I posted on this case on July 9, primarily on the issue of notice to the supposedly defaulting defendant. The plaintiff had failed to give notice of the motion for a default judgment to an appearing defendant, which was deemed to be a jurisdictional defect, leaving the resulting judgment open to attack, presumably in perpetuity. The defendant’s motion to vacate the default should therefore have been granted.

The path to default was interesting: the defendant had moved to dismiss under CPLR 3211, thus establishing an appearance and his entitlement to notice of any motion for default judgment. The motion was denied without prejudice, since the defendant had not included a copy of the complaint in the motion papers. The defendant renewed the motion but the motion was marked off, and the defendant thereafter failed to serve an answer.

As a secondary comment on the case, I noted my objection to the whole idea of a motion being marked off, rather than decided. It occurs to me now that the result of that procedure here is that the defendant was not, in fact, in default. Making the motion to dismiss extended his time to answer until ten days after service of notice of entry of the order deciding the motion (CPLR 3211 [f]). Since there has not been an order, the defendant’s time to answer remains open. The motion itself, in my view, remains pending and undecided.

Supreme Court’s order denying the motion to vacate notes that the motion was marked off in the Centralized Motion Part. By whom it was marked off, or by what authority, remains unclear. In any event, there was no order deciding the motion. For a clerk or referee to note the mark-off on the court’s internal records may suffice for the purposes of the court’s internal housekeeping, but it is not an acceptable substitute for an order.

Bill Altreuter, who writes the Outside the Law blog, has some fascinating comments on Note of Issue practice in the 8th Judicial District (that’s Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans & Wyoming Counties). He relates that it is common practice for the trial date to be set long before the Note of Issue is filed, and the filing itself is treated as a mere revenue-generating formality. Where other procedural steps such as summary-judgment motions and amended or supplemental Bills of Particulars have timing requirements related to the filing of the Note, this can have what he describes as “odd” effects.

I find most telling his comment that the judicial attitude toward the Note of Issue is a consequence, at least in part, of the OCA calendar requirements, known as Differentiated Case Management. I’ve spent most of my professional time in Supreme Queens, where the common complaint has been that compliance with DCM rules made a mockery of the Note of Issue and its related rules. Is anyone at OCA paying attention to the actual consequences of DCM?

Matter of Nonhuman Rights Project v Stanley

This is the latest in a series of habeas corpus petitions, uniformly unsuccessful but notable nonetheless, brought by the Nonhuman Rights Project in an effort to have various captive chimpanzees recognized as “persons.” The strategy is that granting habeas relief to chimps necessarily entails recognition of their personhood, since habeas relief is available only to “persons.” As with the others, this petition has been dismissed, but this time not without achieving the minor victory of having obtained a hearing on the merits.

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Deutsche Bank Natl. Trust Co. v Gavrielova

___ AD3d ___, 2015 NY Slip Op 05907 [2d Dept., 2015]

The defendant Bey in this foreclosure action moved to dismiss the complaint, but the motion was denied, without prejudice. His subsequent motion to renew was “marked off” the motion calendar, of which more shortly. He never answered. A few weeks after the motion was “marked off,” Plaintiff moved for a default judgment and an order of reference, without notice to Bey. The motion was granted. Bey then moved to vacate the default judgment and order of reference, and Supreme Court denied his motion.

The Appellate Division reversed. CPLR 3215 (g) provides that a defendant who has appeared in an action is entitled to notice of a motion for a default judgment, and this applies even where he has defaulted in answering. Since Bey’s motion to dismiss was one which had the effect of extending his time to answer, it constituted an appearance (CPLR 320[a]). Bey was consequently entitled to notice of the motion for a default judgment. The failure to give him notice was more than a mere error, but was a jurisdictional defect. Bey’s motion to vacate should accordingly been granted.

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Piacente v Bernstein,

127 A.D.3d 1365, 6 N.Y.S.3d 793 [3rd Dept., 2015]

At the beginning of the trial, where there are six jurors in the box, plus alternates, should the alternates be separately designated from the beginning? Or, should the designation of alternates be made just before the jury retires to deliberate? The perceived problem with advance designation of alternates is that the alternates might assume that they will not be needed, and so be tempted to pay less than full attention to the trial. Delaying the designation maintains the suspense, and is thought to make all of the jurors more likely to concentrate.

This case presented a conflict between the CPLR and local rules for the designation of alternates, and it is noted here only to point out the problem. Supreme Court, Albany County, held that the local rule could not be imposed over a party’s objection, and wound up directing a new trial. The Appellate Division contented itself with noting that Supreme Court acted within its discretion, but did not resolve the conflict in procedures.

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Walton v Strong Mem. Hosp.

___ NY3d ___, 2015 NY Slip Op 04786 [2015]

The Court of Appeals has just issued this significant opinion reviewing its major precedents concerning the foreign-object rule in medical malpractice cases, arriving at the factors determining when a given object may qualify for the discovery rule codified in CPLR 214-a, and when it must be excluded as a “fixation device.”

Recall that where a med mal action is based on the discovery of a foreign object in the patient’s body, the statute allows for an extension of the limitations period, for a year after the discovery. Excepted from consideration as “foreign objects” are chemical compounds, fixation devices, and prosthetic aids or devices. Defendants will argue for a broad definition of these terms, thus narrowing the category of foreign objects subject to the discovery rule. Plaintiffs, of course, take the opposite tack.

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