Ajaka v. Mount Sinai Hosp.

189 A.D.3d 963

137 N.Y.S.3d 508

Ghassan AJAKA, etc., appellant,

v.MOUNT SINAI HOSPITAL, et al., respondents.

2019–00243

Index No. 705751/18

Supreme Court, Appellate Division, Second Department, New York.

Argued — November 2, 2020

December 9, 2020

Edelman & Edelman, P.C., New York, N.Y. (Alana Landa of counsel), for appellant.

Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and Nicholas Tam of counsel), for respondents.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals, from an order of the Supreme Court, Queens County (Peter J. O'Donoghue, J.), entered November 27, 2018. The order, insofar as appealed from, granted that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against the defendants Mount Sinai Hospital and Mount Sinai Hospital of Queens, doing business as Mount Sinai Queens, and denied those branches of the plaintiff's cross motion which were to compel the production of certain medical records and to extend the plaintiff's time to file a certificate of merit pursuant to CPLR 3012–a(d).

ORDERED that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, (1) that branch of the defendants' motion which was to dismiss the complaint insofar as asserted against the defendants Mount Sinai Hospital and Mount Sinai Hospital of Queens, doing business as Mount Sinai Queens, is denied, (2) that branch of the plaintiff's cross motion which was to compel the defendants to produce certain medical records is granted to the extent that the defendants shall produce the medical records in the name of Joseph Ajaka for May 2016, which allegedly pertain to the decedent, for an in camera review by the Supreme Court, Queens County, in accordance with this decision and order to determine if said records should be released to the plaintiff, and (3) that branch of the plaintiff's cross motion which was to extend the plaintiff's time to file a certificate of merit pursuant to CPLR 3012–a(d) is granted to the extent that, upon the Supreme Court's in camera review of the aforesaid medical records, and subsequent release to the plaintiff, if the court so determines, the plaintiff shall serve the certificate of merit within 90 days thereafter.

In May 2016 the decedent Jiryes Ajaka allegedly made two visits to the emergency room at Mount Sinai Hospital Queens. On both occasions, he was allegedly treated and released. On the day following his second visit, the decedent collapsed and stopped breathing. He was then transported via ambulance to Elmhurst Hospital, where he was pronounced dead. The plaintiff, as the administrator of his deceased son's estate, commenced this action against the defendants Mount Sinai Hospital and Mount Sinai Hospital of Queens, doing business as Mount Sinai Queens (hereinafter together the hospital defendants), as well as Mount Sinai Medical Center, Inc., Mount Sinai Health System, Inc., and Mount Sinai Hospitals Group, Inc., alleging that the defendants "negligently, improperly and/or inadequately treated and diagnosed" the decedent.

In a pre-answer motion, the defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint as to all defendants. As is relevant here, in support of that branch of their motion which was to dismiss the complaint insofar as asserted against the hospital defendants, the defendants submitted affidavits from the Health Information Management Manager for Release of Information for the Mount Sinai Hospital and the Director of Medical Records for Mount Sinai Queens, which claimed that the defendants did not maintain any medical records of a patient under the decedent's name pertaining to treatment at the relevant time. The plaintiff opposed that branch of the defendants' motion which was to dismiss the complaint insofar as asserted against the hospital defendants. The plaintiff also cross-moved, inter alia, to compel the disclosure of the medical records which were allegedly mistakenly in the name of the decedent's brother and to extend the plaintiff's time to file a certificate of merit to 90 days after receipt of the requested medical records.

By order entered November 27, 2018, the Supreme Court granted the defendants' motion and denied the plaintiff's cross motion.

Contrary to the defendants' contention, there was no basis, pursuant to CPLR 3211(a)(1), to dismiss the complaint insofar as asserted against the hospital defendants. A motion to dismiss a cause of action pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's allegations, thereby conclusively establishing a defense as a matter of law (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Hinnant v. Carrington Mtge. Servs., LLC, 172 A.D.3d 827, 828–829, 100 N.Y.S.3d 69 ). In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as "documentary evidence," it must be "unambiguous, authentic, and undeniable" ( Phoenix Grantor Trust v. Exclusive Hospitality, LLC, 172 A.D.3d 923, 924, 101 N.Y.S.3d 175 [internal quotation marks omitted] ). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" ( First Choice Plumbing Corp. v. Miller Law Offs., PLLC, 164 A.D.3d 756, 758, 84 N.Y.S.3d 171 [internal quotation marks omitted] ). Here, the affidavits...