Woloszuk v. Logan-Young

2023 NY Slip Op 51159(U)

Jacek Woloszuk, Individually and as Executor of the Estate of ELLEN WOLOSZUK, deceased, Plaintiff, v. Wende Logan-Young, M.D., WENDE LOGAN-YOUNG, M.D. d/b/a ELIZABETH WENDE BREAST CLINIC, PHILIP MURPHY, M.D., SOUTHEAST OBSTETRICS & GYNECOLOGY, P.C. and RITA CLEMENT, M.D., Defendants.

Index No. I2009006547

Supreme Court, Monroe County

October 5, 2023

Unpublished Opinion

Paul William Beltz, LLC, Buffalo, New York (Anne B. Rimmler William A. Quinlan and Elizabeth K. Bacher) for the Plaintiff JACEK WOLOSZUK, Individually and as Executor of the Estate of ELLEN WOLOSZUK, deceased.

Underberg & Kessler LLP, Rochester, New York (Margaret E Somerset) for the defendants Wende Logan-Young, M.D. d/b/a Elizabeth Wende Breast Clinic; and Philip Murphy, M.D.

Brown Gruttadaro & Prato, PLLC Rochester, New York (Thomas M. Prato and William Kalish) for the defendants Southeast Obstetrics & Gynecology, P.C. and Rita Clement, M.D.

Christopher S. Ciaccio, J.

In this medical malpractice action, pending since 2009, the court by Decision and Order filed on November 17, 2022, dismissed the claims against defendants Wende Logan-Young, M.D. d/b/a Elizabeth Wende Breast Clinic ("EWBC defendants") ^[1] and defendants Southeast Obstetrics & Gynecology, P.C. and Rita Clement, M.D. ("Southeast Ob/Gyn") because the plaintiff Jacek Woloszuk failed to file a Note of Issue by the deadline set forth in a "Second Supplemental Scheduling Order" dated July 28, 2022. That Order, which the court deemed a valid substitute for a "90 Day Demand," (CPLR 3216 [b]) read that a "Note of Issue shall be filed no later than Friday, September 30, 2022." It also stated that any extensions of the deadlines" must be made in writing."

Plaintiff now moves to vacate the dismissal on the grounds that 1) the dismissal was invalid because it did not specifically state that the failure to comply "would" result in dismissal of the action (citing Hilliard v Highland Hosp., 88 A.D.3d 1291, 1292 [4th Dept 2011]; Koscinski v St. Joseph's Med. Ctr., 24 A.D.3d 421, 421-22 [2d Dept 2005]); 2) plaintiff's counsel requested on September 23 an extension in writing (although it was opposed and never granted); and 3) there exists "justifiable excuse for the delay and a good and meritorious cause of action" (CPLR 3216 [e]).

LITANY OF SCHEDULING ORDERS AND PROCEEDINGS

It has been a defining characteristic of the history of this case that discovery requests and the ensuing (and seemingly inevitable) discovery disputes have occupied an unusually high proportion of the court's attention. Both sides have complained about the responses they have received to the many notices to produce, and twice the EWBC defendants have been sanctioned for the inadequacy of their response. Most recently, and in addition, it has been requests for extensions of discovery deadlines due to personal issues of plaintiff's counsel and consequent inability to conduct further depositions that have caused delays since the case was re-assigned to this court.

There have been no less than nine scheduling orders issued since the case was re-assigned in July 2020, and the court has been assiduously and even aggressively trying to bring the matter to trial, to close out the agony of uncertainty experienced by all parties for 14 years.

On August 28, 2020 (see NYSCEF Doc. Nos. 76 and 77) the court set a date for the completion of discovery and for a conference to set the date for the filing of the note of issue.

On April 23, 2021 (NYSCEF Doc. No. 115) the court issued a "Day Certain Order" for trial on November 12, 2021, which included an order that the note of issue "shall be filed no later than July 1, 2021."

On or about July 20, 2021 (NYSCEF Doc. No. 122) the court issued a "Second Amended Scheduling Order" that extended discovery deadlines, struck a note of issue that had been filed back in 2013, and stated that "an amended Note of Issue and Statement of Readiness shall be refiled on or before October 15, 2021..." The trial date was unchanged.

On or about September 3, 2021 (see NYSCEF Doc. No. 153) the court issued a "Third Amended Scheduling Order" extending discovery deadlines but leaving all else unchanged. It repeated that the note of issue and statement of readiness "shall be refiled on or before October 15, 2021." Plaintiff's counsel had requested by letter dated August 25, 2021 (NYSCEF Doc. No. 128) more time to review the documents provided by the defendants in the most recent document disclosure.

On or about October 6, 2021, the court issued a "Supplemental Scheduling Order" (NYSCEF Doc. No. 201), directing that the note of issue "shall be filed on or before November 10, 2021." By this time defendants had filed summary judgment motions.

On or about November 19, 2021 (NYSCEF Document 223) the court issued a "Fourth Amended Scheduling Order" which extended discovery deadlines and set a new date for the note of issue filing, which the court mandated "shall be filed on or before April 6, 2022."

By letter dated December 30, 2021 (NYSCEF Doc. No. 224) plaintiff's counsel again requested more time within which to complete discovery, citing illness among staff, family commitments and the volume of materials received.

Accordingly, the court issued on January 20, 2022, an "Amended Day Certain Order" (NYSCEF Doc. No. 231) which set a trial date of January 6, 2023, and directing that "An Amended Note of Issue shall be filed no later than Friday, July 22, 2022."

Following a virtual conference, the court extended discovery deadlines by Order dated February 9, 2022 (NYSCEF Doc. No. 234).

Plaintiffs' counsel wrote on July 8, 2022 (NYSCEF Doc. No. 235), requesting a further extension of discovery. The firm's efforts to "make determinations as to which individuals to depose" were hampered by the illness of one attorney, another attorney's husband had surgery, and the parent of another attorney working on the case passed away. Accordingly on July 28, 2022 (see NYSCEF Doc. No. 238) the court issued a "Second Supplemental Scheduling Order" and granted an extension of discovery to September 30, 2022. The Order stated, again for the seventh time, that a note of issue "shall be filed," this time by September 30, 2022.

The full text of that Order is as follows:

"Plaintiff's counsel having appropriately requested relief in the form of an extension of the Supplemental Scheduling Order, dated February 9, 2022; and the Court having issued an Amended Day Certain Jury Trial Order on January 20, 2022, which remains in full force and effect, except for the deadline relative to the filing of an Amended Note of Issue, it is hereby

ORDERED, that ALL discovery shall (emphasis added) be completed on or before September 30, 2022; and it is further

ORDERED, that an Amended Note of Issue shall (emphasis added) be filed no later than Friday, September 30, 2022; and it is further

ORDERED, that any request for an extension or amendment of this Second Supplemental Scheduling order must be made in writing, on notice and upon good cause shown, on or before September 23, 2022, and must be accompanied by a proposed Amended Supplemental Scheduling Order."

On September 23, 2022, plaintiffs' counsel wrote to further extend the time for discovery and the filing of the note of issue (each to November 30, 2022), claiming it needed additional time to depose "or take proper action" with respect to certain employees it identified within the most recent discovery disclosure from defendant Southeast Ob/Gyn (NYSCEF Doc. Nos. 240 and 241).

Defendant Southeast Ob/Gyn opposed counsel's letter of September 23, 2022 (see NYSCEF Doc. No. 242).

The court did not respond to the discovery extension request, and September 30, 2023, passed without the filing of the note of issue.

On November 1, 2022, counsel for the EWBC defendants wrote the court for its "direction," indicating that while not unprecedented that a defendant would file the note of issue, it would be unusual (see NYSCEF Doc. No. 243). On November 3, 2022, counsel for Southeast Ob/Gyn wrote making the same inquiry and indicated it would be willing to file the note of issue and try the case as directed in January 2023 (see NYSCEF Doc. No. 244).

The court by Decision and Order filed on November 17, 2022, dismissed the action in its entirety (NYSCEF Doc. No. 246).

Plaintiff filed a Notice of Appeal on December 15, 2022, and moved to vacate the dismissal by motion dated February 24, 2023.

VALIDITY OF COURT'S DISMISSAL ORDER

The Fourth Department has held, that "While an order may have the same effect as a valid 90-day demand, that order must advise as to the consequences for failing to comply i.e., dismissal of the complaint" (Hilliard v Highland Hosp., 88 A.D.3d 1291, 1292, 930 N.Y.S.2d 390 [4th Dept 2011]), citing Koscinski v St. Joseph's Med. Ctr., 24 A.D.3d 421, 421-422 [2d Dept 2005] and Bort v Perper, 82 A.D.3d 692, 694 [2d Dept 2011]). In Hilliard, there was "no indication that plaintiff was advised that his failure to file a note of issue either by November 1st or November 24th would result in dismissal of the complaint" (Hilliard, 88 A.D.3d at 1292).

The court acknowledges that the "Second Supplemental Scheduling Order" did not contain language that explicitly stated something to the effect that "failure to file would result in dismissal."

Nonetheless, here there was a clear "indication" (Hilliard v Highland Hosp., 88 A.D.3d 1291, 1292 [4th Dept 2011]) that failure to file or to be granted an extension would be met with dismissal. Although the Order did not use the word "dismissal," the intent was clear over the course of the many scheduling orders. What else could "shall be filed" mean?

The Fourth Department has held (albeit in a different...