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Slane v. Kalache2/21/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Plaintiff Elizabeth Slane commenced this action seeking to recover money damages for personal injuries sustained due to the alleged medical malpractice of numerous doctors and several hospitals. Initially, defendants did not move for summary judgment when plaintiff filed her note of issue in 2002. It was when the case was stricken from the calendar and then restored by court order upon the filing of a second note of issue that defendants move for summary judgment dismissing the action. The dispositive issue on these apparently meritorious motions is whether defendants gained a second opportunity to move for summary judgment under the circumstances of this case.
Factual and Procedural Background
On April 28, 1999, plaintiff Elizabeth Slane commenced this action seeking to recover money damages for personal injuries sustained due to the alleged medical malpractice of defendant doctors Jean Kalache, MD., David E. Lent, M.D., and Christopher Melcer, M.D., and defendant hospitals St. Joseph's Medical Center and Westchester Emergency Medical Services, P.C. The alleged medical malpractice stems from the treatment of plaintiff's dislocated/fractured right shoulder. The depositions of plaintiff and defendant doctors took place from December 31, 1999 to December 9, 2001. On or about June 11, 2001, plaintiff served and filed the note of issue and certificate of readiness, attesting that the case was ready for trial. Thereafter, no summary judgment motion was filed by any of the defendants.
About a year and a half later, the case was stricken from the trial calendar when plaintiff was not ready to proceed to trial at the pretrial conference. The pretrial conference is the trial part designed to get the parties and the judge together on the eve of trial for a variety of reasons, notably to evaluate the case and discuss possible settlement. See Uniform Rule §202.26. At the pretrial conference, plaintiff's illness, unrelated to this case, prevented her from proceeding to trial. About a year and a half after the case was stricken from the trial calendar, the court granted plaintiff's motion seeking a court order restoring the action to the trial calendar. The order of restoration, dated May 4, 2004, was contingent upon plaintiff filing a new notice of issue, which plaintiff did on May 20, 2004.
On September 21, 2004, about a month before the parties were scheduled to re-appear at the pretrial conference, defendant Dr. Lent submitted to the Justice presiding over the part an order to show cause, seeking to submit a summary judgment motion for a dismissal of the claims asserted against him, pursuant to CPLR §3212(a). The order to show cause, which was signed on September 24, 2004, placed the summary judgment motion for October 26, 2004, the date that the pretrial conference was scheduled to take place. Defendant Dr. Lent served plaintiff the motion papers by dropping them in the mail on September 28, 2004. Prior to the submission date, the remaining defendants also cross moved for summary judgment dismissing the action. Besides opposing the motion and cross motion on the merits, plaintiff argues that the motion and cross motions are untimely pursuant to CPLR §3212(a), since none of the defendants moved for summary judgment within the 120-day period after plaintiff filed her note of issue in 2002. Only one defendant offers a reply to the untimeliness argument. Defendant Dr. Lent argues that the motion is timely because it was filed within 120-days from the filing of the seco
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