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Rauchwerger v. North Shore University Hosp.

Other Lower Courts

December 10, 2007

Dean S. Rauchwerger, as Administrator of the Estate of Peggy Rauchwerger, Plaintiff,
North Shore University Hospital, Defendant.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.


Frank X. Kilgannon, PC Attorney for Plaintiff

Martin Clearwater Bell, LLP Attorneys for Defendant


William R. LaMarca, J.

Defendant, NORTH SHORE UNIVERSITY HOSPITAL (hereinafter referred to as "NSUH"), moves for an order, pursuant to CPLR 3216, dismissing the Complaint of the plaintiff, DEAN S. RAUCHWERGER, as Administrator of the Estate of PEGGY RACHWERGER (hereinafter referred to as "RAUCHWERGER"), for want of prosecution, or, in the alternative, pursuant to CPLR 3126, dismissing the third cause of action of the Complaint, which seeks damages for false advertising, for failure to comply with this Court's Order, dated February 14, 2007. Plaintiff opposes the motion and in a cross-motion dated July 18, 2007, cross-moves for an order extending plaintiff's time to comply with the February 14, 2007 order of the Court, and for an order vacating the two (2) alleged 90 - day Notices filed by the defendant, compelling the defendant to comply with and produce the documents demanded in the plaintiff's Notice for Discovery and Inspection (D I), dated February 2, 2007, permitting reargument of the motion resulting in the Short Form-Order, dated May 17, 2007, only as to Category Number 4 (hospital advertisements), and dismissing the defendant's Answer for failure to comply with a portion of the Short Form Order, dated May 17, 2007.

In a subsequent motion, defendant, NSUH, moves for an order, pursuant to CPLR 2304 and 22 NYCRR 202.21(d), quashing plaintiff's Judicial Subpoenas Duces Tecum for attempting to conduct post-Note of Issue Discovery and, pursuant to CPLR 3103, granting NSUH a protective order that bars plaintiff from using any documents at trial obtained pursuant to plaintiff's Judicial Subpoenas Duces Tecum. Counsel for plaintiff RAUCHWERGER opposes said motion and cross-moves for an order vacating or modifying the Note of Issue and Certificate of Readiness filed by him, to permit compliance by Newsday and Cablevision with certain discovery subpoenas. The motions and cross-motions are determined as follows:

In this action, plaintiff, DEAN S. RACHWERGER, as Administrator of the Estate of PEGGY RAUCHWERGER, seeks to recover for alleged medical malpractice resulting in the death of plaintiff's decedent, PEGGY RAUCHWERGER, who died on January 31, 2003, allegedly as the result of the negligent medical treatment she received while she was confined as a patient in the defendant hospital from January 25, 2003 through January 31, 2003. Plaintiff died after undergoing heart surgery on January 28, 2003. She was 80 years old at the time of her death. The complaint alleges three causes of action: (1) medical malpractice; (2) lack of informed consent; and (3) false advertising.

On January 27, 2005, plaintiff commenced the litigation by filing a Summons with Notice ( NSUH Motion, Exhibit "A"). On April 27, 2005, defendant served a Notice of Appearance and Demand for Complaint (NSUH Motion, Exhibit "B" ). On May 26, 2005, plaintiff, by facsimile, sent a copy of the Verified Complaint to defendant's attorney (NSUH Motion, Exhibit "C"). On the same day, i.e., on May 26, 2005, defendant, by letter, rejected plaintiff's Complaint as untimely, as a matter of law, since the Complaint was not served within twenty (20) days of defendant's demand for a Complaint, pursuant to CPLR 3012(b) (NSUH Motion, Exhibit "D"). The next day, on May 27, 2005, defendant moved to dismiss the action pursuant to CPLR 3012(b). In response to the motion, plaintiff submitted a Memorandum of Law and an Affirmation in Opposition, dated November 8, 2005. All papers were submitted to the Court on November 14, 2005. By Short Form Order, dated February 8, 2006, the Court denied defendant's motion (NSUH Motion, Exhibit "E") and, on February 13, 2006, defendant, served a Verified Answer to plaintiff's complaint (NSUH Motion, Exhibit "F").

On March 27, 2006, plaintiff served a Verified Bill of Particulars ("BOP") in which plaintiff alleged, inter alia:

[t]hat for many years, the defendant hospital published false and misleading advertisements to the general public and promoted itself to the general publicand this patient in particular as being the premiere hospital in the metropolitan area, especially in the medical area of heart care, quality control and deliverance of outstanding heart related medical care...the defendant disseminated false success rates pertaining to defendant's heart-related procedures...[t]he defendant mislead and promoted to the general public, and this patient in particular, a false and misleading level of confidence in the high quality hospital and cardiac care one would receive at the defendant's hospital all of which constitute deceptive, false, misleading advertising and false promotion and unfair and deceptive trade practices in violation of various consumer laws including but not limited to the General Business Law of this state to the damage of the plaintiff's intestate and her survivors (NSUH Motion, Exhibit "G", 1[n], [u] and [v] [Emphasis Added]).

On March 28, 2006, a Preliminary Conference was held. In the Stipulation and Order of same date, the plaintiff was to provide a Supplemental BOP, within twenty (20) days, as to the specific sections of the "Consumer Law", Public Health Law and General Business Law that defendant had allegedly violated ( NSUH Motion, Exhibit "H").

On or about May 5, 2006, plaintiff served a Notice for Discovery and Inspection ("D I") and Combined Demands for Expert Witnesses and Notice to Produce (NSUH OTSC, Exhibit "E"). The Notice of D I contained fifty (50) paragraphs and sought a wide range of discovery from the defendant, including "copies of all marketing, advertising and informational documents disseminated to any media for three (3) years prior to February 1, 2003" (NSUH OSC, Exhibit "E", 35).

On June 8, 2006, defendant served a response to the Notice for D I and Notice to Produce. Therein, defendant objected to the demand in 35, as overbroad, unduly burdensome and palpably improper. Soon thereafter, on June 12, 2006, another Compliance Conference was held at which the Court again directed the plaintiff to provide the Supplemental BOP as set forth in the PC Order (NSUH Motion, Exhibit "I"). There being no compliance, on September 19, 2006, pursuant to CPLR 3216, defendant served a 90-day Notice on plaintiff demanding that plaintiff resume the prosecution of this action and serve and file a Note of Issue ("NOI") with the Clerk of this Court and that default by the plaintiff in complying with the demand within 90 days after service would constitute the basis for a motion by the defendant for a dismissal for unreasonably neglecting to proceed with this action (NSUH Motion, Exhibit "J"). Said Notice was received by plaintiff's counsel on September 20, 2006. (Certified Mail Return Receipt Request card attached to the 90-day Notice, NSUH Motion, Exhibit "J").

On October 19, 2006, another Compliance Conference was held before the Court. Since plaintiff had still not provided the Supplemental BOP, as had been ordered at the Preliminary Conference, plaintiff was again ordered to provide the Supplemental Bill as set forth in the Preliminary Conference Order (NSUH Motion, Exhibit "K").

On January 26, 2007, defendant served a Notice for D I requesting, inter alia, copies of the advertisements and publications of defendant that the decedent relied upon, as alleged in plaintiff's Complaint and BOP in support of the false advertising cause of action (NSUH Motion, Exhibit "L") In the moving papers, defendant states that, to date, plaintiff has not served a response to this notice.

On February 1, 2007, plaintiff served a Supplemental BOP, in which he claimed that defendant violated General Business Law §§ 349 and 350, and more specifically, GBL §§349(m) and (t) and Public Health Law (PHL) 2805 J 1(d) (NSUH Motion, Exhibit "M"). Thereafter, plaintiff served another Notice for D I, dated February 5, 2007 and postmarked February 13, 2007, containing demands relating to plaintiff's false advertising claim ...

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