Dray v. Island Univ. Hosp.

2024 NY Slip Op 02300

Rinat Dray, appellant, v. Staten Island University Hospital, et al., respondents.

No. 2019-12617, Index No. 500510/14

Supreme Court of New York, Second Department

May 1, 2024

Michael M. Bast, P.C., Brooklyn, NY, for appellant.

Gerspach Sikoscow LLP (Mauro Lilling Naparty LLP, Woodbury NY [Caryn L. Lilling and Kathryn M. Beer], of counsel), for respondents Staten Island University Hospital and James J Ducey.

Rawle & Henderson LLP, New York, NY (John T. Evans, Linda J. DeCorato, and Michael L. Moretti of counsel), for respondents Leonid Gorelik and Metropolitan OB-GYN Associates, P.C.

Letitia James, Attorney General. New York, NY (Barbara D. Underwood, Ester Murdukhayeva, Galen Sherwin, and Blaire J. Greenwald of counsel), for amicus curiae State of New York.

Birth Rights Bar Association, New York, NY (Elizabeth Kukura of counsel), amicus curiae pro se and for amicus curiae Birth Place Lab.

Washington Square Legal Services, Inc., New York, NY (Sarah Burns and Lynn Paltrow of counsel; Indra Lusero on the brief), for amicus curiae National Advocates for Pregnant Women.

Hayes Klein Law, LLC, New York, NY (Hermine Hayes Klein of counsel), for amici curiae VBAC Facts LLC and Evidence Based Birth.

New York Civil Liberties Union, New York, NY (Jessica Perry, Beth Haroules, Katharine Es Bodde, and Molly K. Biklen of counsel), amicus curiae pro se.

If/When/How: Lawyering for Reproductive Justice, Brooklyn, NY (Farah Diaz-Teller of counsel), amicus curiae pro se and for amici curiae Center for Reproductive Rights, Human Rights and Gender Justice Clinic at the City University of New York Law School (HRSG), White Ribbon Alliance, and Birthrights.

FRANCESCA E. CONNOLLY, J.P. JOSEPH J. MALTESE DEBORAH A. DOWLING CARL J. LANDICINO, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated October 1, 2019. The order, sua sponte, in effect, granted the defendants leave to reargue their separate oppositions to the plaintiff's prior motion for leave to amend the amended complaint to assert causes of action alleging breach of contract, fraud, violations of General Business Law §§ 349 and 350, a violation of Civil Rights Law § 40, and gender discrimination in violation of Executive Law § 291 and the Administrative Code of the City of New York § 8-107, which had been granted in an order of the same court dated January 7, 2019, and, upon reargument, vacated so much of the order dated January 7, 2019, as granted the plaintiff's prior motion for leave to amend the amended complaint to assert those causes of action, and thereupon, denied the plaintiff's prior motion.

ORDERED that, on the Court's own motion, the notice of appeal from the order dated October 1, 2019, is deemed an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]); and it is further, ORDERED that the order dated October 1, 2019, is modified, on the law, (1) by deleting the provisions thereof, upon reargument, vacating so much of the order dated January 7, 2019, as granted those branches of the plaintiff's prior motion which were for leave to amend the amended complaint to assert causes of action alleging breach of contract and gender discrimination in violation of Executive Law § 291 and the Administrative Code of the City of New York § 8-107, and thereupon, denying those branches of the plaintiff's prior motion, and substituting therefor a provision, upon reargument, adhering to the original determination in the order dated January 7, 2019, granting those branches of the plaintiff's prior motion, and (2) by deleting the provisions thereof, upon reargument, vacating so much of the order dated January 7, 2019, as granted those branches of the plaintiff's prior motion which were for leave to amend the amended complaint to assert causes of action alleging fraud and violations of General Business Law §§ 349 and 350 insofar as asserted against the defendants Staten Island University Hospital and James J. Ducey, and thereupon, denying those branches of the plaintiff's prior motion, and substituting therefor a provision, upon reargument, adhering to the original determination in the order dated January 7, 2019, granting those branches of the plaintiff's prior motion; as so modified, the order dated October 1, 2019, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

The facts underlying this action are summarized in our decision and order on a prior appeal (see Dray v Staten Is. Univ. Hosp., 160 A.D.3d 614). Following discovery, the plaintiff moved for leave to amend the amended complaint to assert causes of action alleging breach of contract, fraud, violations of General Business Law §§ 349 and 350, a violation of Civil Rights Law § 40, and gender discrimination in violation of Executive Law § 291 and the Administrative Code of the City of New York § 8-107 (hereinafter collectively the new causes of action). The defendants Leonid Gorelik and Metropolitan OB-GYN Associates, P.C. (hereinafter Metropolitan), opposed the plaintiff's motion for leave to amend the amended complaint to assert the new causes of action and cross-moved for an award of attorneys' fees. The defendants Staten Island University Hospital (hereinafter the hospital) and James J. Ducey separately opposed the plaintiff's motion and cross-moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the new causes of action insofar as asserted against them in the event that the plaintiff's motion for leave to amend the amended complaint was granted. In an order dated January 7, 2019, the Supreme Court granted the plaintiff's motion and denied the defendants' separate cross-motions. The plaintiff filed a second amended complaint dated January 17, 2019, containing the new causes of action.

Thereafter, the hospital and Ducey moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the new causes of action insofar as asserted against them, or, in the alternative, for leave to reargue their prior cross-motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the new causes of action insofar as asserted against them. Gorelik and Metropolitan separately moved pursuant to CPLR 3211(a)(7) to dismiss the new causes of action insofar as asserted against them. In an order dated October 1, 2019, the Supreme Court, sua sponte, in effect, granted the defendants leave to reargue their separate oppositions to the plaintiff's prior motion for leave to amend the amended complaint to assert the new causes of action, and, upon reargument, vacated so much of the order dated January 7, 2019, as granted the plaintiff's prior motion for leave to amend the amended complaint to assert the new causes of action, and thereupon, denied the plaintiff's prior motion. The plaintiff appeals from the October 1, 2019 order.

Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion by, sua sponte, in effect, granting the defendants leave to reargue their separate oppositions to the plaintiff's prior motion for leave to amend the amended complaint to assert the new causes of action (see id. § 2221[d][2]; U.S. Bank N.A. v Sallie, 215 A.D.3d 714, 716).

Upon reargument, the Supreme Court improvidently exercised its discretion in denying those branches of the plaintiff's prior motion which were to amend the amended complaint to assert causes of action alleging breach of contract and gender discrimination in violation of Executive Law § 291 and Administrative Code § 8-107, and alleging fraud and violations of General Business Law §§ 349 and 350 against the hospital and Ducey. "'Leave to amend a pleading should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and the delay in seeking amendment does not prejudice or surprise the opposing party'" (First Natl. Bank of Long Is. v Four Keys Realty, LLC, 213 A.D.3d 639, 641, quoting DLJ Mtge. Capital, Inc. v David, 147 A.D.3d 1024, 1025 [alterations omitted]; see Lucido v Mancuso, 49 A.D.3d 220, 226-227). The burden of establishing prejudice is on the party opposing the amendment (see Kimso Apts., LLC v Gandhi, 24 N.Y.3d 403, 411). "In determining a motion for leave to amend a pleading, a court shall not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt" (Recine v Recine, 201 A.D.3d 830, 831 [internal quotation marks omitted]; see United Fairness, Inc. v Town of Woodbury, 113 A.D.3d 754, 755; Lucido v Mancuso, 49 A.D.3d at 227).

Here the proposed causes of action alleging breach of contract, gender discrimination in violation of Executive Law § 291 and Administrative Code § 8-107, and the proposed causes of action alleging fraud and violations of General...