The opinion of the court was delivered by: Joseph C. Teresi, J.
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.
Plaintiffs commenced both captioned actions seeking damages upon their claim that defendants were negligent, committed professional malpractice or violated statutory duties of care, by failing to timely inform, diagnose or care for Mr. Gosse's liver cancer. Previously, on July 23, 2008, this Court issued a Decision and Order (hereinafter "Decision and Order") in Action #1 which set forth the factual background of this action. Such facts are not restated herein, but rather are incorporated by reference. In the Decision and Order, this Court held that the portion of plaintiffs' complaint sounding in malpractice against Dr. Clift, Albany Gastroenterology Consultants, PC's, Erick S. Korenman, M.D. and Lee Ratner, M.D. was barred by the statute of limitations. Such decision did not reach the issue of whether plaintiffs' complaint properly set forth a claim sounding in ordinary negligence.
Subsequent to this Court's Decision and Order, on October 13, 2008, Mr. Gosse passed away. Plaintiffs now move in Action #1 to substitute the Estate of Ronald Gosse for Mr. Gosse individually, which is unopposed by any defendant. As CPLR §1015 requires substitution of the proper party, upon the death of a party, the Estate of Ronald Gosse is hereby substituted into Action #1 for Ronald Gosse individually, and the caption of this action shall be amended accordingly.
Additionally, since this Court's Decision and Order, plaintiffs have commenced Action #2 wherein the Action #1 defendants are again named and plaintiffs again make substantially the same factual allegations. Defendants Michael J. Esposito, The Endocrine Group, LLP, Mark L. Fruiterman and Gregg F. Gerety (hereinafter collectively referred to as the "Gerety defendants") and the Ratner defendants*fn1 all move to dismiss the Action #2 complaint pursuant to CPLR §§3211(a)(4) and 3211(a)(5). Similarly, the Clift defendants move to consolidate Action #2 with Action #1. Plaintiffs oppose the Gerety and Ratner defendants' motions, but support the Clift defendants' motion to consolidate.
Defendants Eric S. Korenman and Lee Ratner (hereinafter collectively referred to as the "Ratner defendants") and defendants Richard Clift and Albany Gastroenterology Consultants, P.C. (hereinafter collectively referred to as the "Clift defendants") also move for summary judgment in Action #1, claiming that plaintiffs' causes of action against them are time barred because they sound wholly in medical malpractice and not in ordinary negligence. Plaintiffs oppose these motions.
Finally, plaintiffs have also moved to amend the complaint in Action #1, after serving a first and second amended complaint without leave of court, to add claims sounding in corporate and common law negligence against defendant St. Peter's Hospital, conscious pain and suffering against each defendant, and for wrongful death. Plaintiffs' motion is opposed by the Ratner and Clift defendants.
Motions to Dismiss Action #2 and Motion to Consolidate Action #2 with Action #1
CPLR §3211(a)(4) states that "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that... there is another action pending between the same parties for the same cause of action in a court of any state..." However, where two identical actions are pending, CPLR §3211(a)(4) dose not mandate dismissal, but rather allows the Court to "make such order as justice requires". Moreover, CPLR §602(a) states that "[w]hen actions involving a common question of law or fact are pending before a court, the court, upon motion, may order... the actions consolidated". "Consolidation is favored by the courts as serving the interests of justice and judicial economy". (Guasconi v. Pohl, 2 AD3d 1202 [3d Dept. 2003][citing references omitted]).Here, Action #2 names the exact same defendants as Action #1. Action #2's factual assertions are also the same as those made in Action #1's second amended complaint, except for the assertions set forth in Action #2's fifth cause of action. Action #2's fifth cause of action, however, sets forth only the statutory duties of defendant St. Peter's Hospital, and alleges a breach thereof. St. Peter's Hospital has not opposed either motion, nor have any parties opposed the Clift defendants' motion to consolidate. The Gerety and Ratner defendants, however, move to dismiss Action #2 rather than consolidate it with Action #1. Because discovery is still ongoing, no claim of prejudice has been made, nor any objection entered to the consolidation motion, and in the interest of judicial economy Action #1 and Action #2 are consolidated for all purposes.
Accordingly, the Gerety and Ratner defendants' motions to dismiss, brought pursuant to CPLR §§3211(a)(4) and 3211(a)(5), are denied as moot; and, the Clift defendants' motion to consolidate is granted. The complaint underlying this consolidated action shall be Action #1's Amended Complaint, dated January 9, 2009, except for that portion of the amended complaint addressed and dismissed below.
Motion for Summary Judgment of the Clift and Ratner Defendants
"[S]ummary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue." (Napierski v. Finn, 229 AD2d 869 [3d Dept. 1996]).
On a motion on for summary judgment, the movant must establish by admissible proof, the right to judgment as a mater of law. (Alvarez v. Prospect Hospital, 68 NY2d 320 ). A movant fails to meet their burden by "pointing to gaps in... proof", rather the movant's obligation on the motion is an affirmative one. (Antonucci v. Emeco Industries, Inc., 223 AD2d 913, 914 [3d Dept.1996]). If the movant establishes their right to judgment as a matter of law, the burden then shifts to the opponent of the motion to establish by admissible proof, the existence of genuine issues of fact. (Zuckerman v. City of New York, 49 NY2d 557 ). In opposing a motion for summary judgment, one must produce "evidentiary proof in admissible form. . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." (Id. at 562).
The Clift and Ratner defendants' motions for summary judgment are set against the background of this Court's prior Decision and Order. Such decision, as noted above, dismissed all of plaintiffs' claims against the Clift and Ratner defendants sounding in medical malpractice. In Action #2 plaintiffs' re-alleged identical medical malpractice claims as those previously dismissed. Because the parties have already had a full and fair opportunity to challenge the dismissal, plaintiffs' Action #2 medical malpractice claims against the Clift and Ratner defendants are collaterally estopped and dismissed. (Marotta v. Hoy, 55 AD3d 1194, 1196 [3d Dept. 2008]). Likewise, the "law of the case" doctrine bars plaintiffs' from amending their complaint in Action #1 to ...