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Green v. Advanced Cardiovascular Imaging

September 30, 2009

HELEN I. GREEN, AS EXECUTRIX OF THE ESTATE OF MICHAEL H. LEVY, AND HELEN I. GREEN, INDIVIDUALLY, PLAINTIFFS,
v.
ADVANCED CARDIOVASCULAR IMAGING, DEFENDANT.



The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge

MEMORANDUM AND ORDER

This is a medical malpractice action brought by Helen I. Green, on her own behalf and as Executrix of the Estate of Michael H. Levy, against Advanced Cardiovascular Imaging. The parties consented to my jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c), and I dismissed the case on March 10, 2009 for failure to prosecute. The plaintiff now moves to vacate the order dismissing the action and to restore the case to active status pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure. For the reasons that follow, the plaintiff's motion is granted. Background

A. Facts

On January 20, 2006, Advanced Cardiovascular Imaging performed medical testing on the decedent, Michael H. Levy, at its office in Manhattan. (Complaint, ¶ 9; Answer, ¶ 5). The Complaint alleges that the defendant negligently performed these tests, causing physical, psychological, and emotional injuries to Mr. Levy; pecuniary and economic loss to his estate and dependents; and psychological and emotional injury, including loss of consortium, to his wife, Helen I. Green. (Complaint, ¶¶ 12, 15, 18). When Mr. Levy passed away, Ms. Green was appointed Executrix of his estate.

B. Procedural History

Ms. Green filed this suit on April 19, 2007. A pretrial conference was held on March 3, 2008, at which discovery was scheduled to be completed by May 30, 2008 and the pretrial order deadline was set for June 30, 2008. Counsel for the defendant requested, and I granted, an extension of the discovery schedule. Fact discovery was then scheduled to be completed by September 15, 2008, expert reports exchanged by October 15, 2008, and expert discovery finalized by November 14, 2008. The pretrial order deadline was extended to December 15, 2008.

On February 4, 2009, having not received the joint pretrial order, I ordered the plaintiff to show cause by February 20, 2009 why the case should not be dismissed for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. When the plaintiff failed to respond, I dismissed the case sua sponte on March 10, 2009. On May 27, 2009, the plaintiff filed the instant motion to vacate the order of dismissal pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure on grounds of excusable neglect.

Between the time the complaint was filed and the date the case was dismissed, Ira C. Podlofsky, counsel for the plaintiff, experienced both personal and professional upheaval, causing him to neglect Ms. Green's case for much of that period. First, Mr. Podlofsky and his wife, Jan Orange, began divorce proceedings. (Declaration of Ira C. Podlofsky dated May 27, 2009 ("Podlofsky Decl."), ¶ 4). Ms. Orange was also Mr. Podlofsky's law partner. (Podlofsky Decl., ¶ 4). As a result of the financial disruptions caused by his separation from Ms. Orange, Mr. Podlofsky was forced to lay off two attorneys and the administrative manager from his law practice, leaving him as the sole attorney handling the practice. (Affirmation of Ira C. Podlofsky dated July 31, 2009 ("Podlofsky Reply Aff."), ¶ 9; Podlofsky Decl., ¶ 5). Because Ms. Orange is not now employed, and has not been for some time, Mr. Podlofsky is providing the financial support for their separate households and their two daughters. (Podlofsky Aff., ¶¶ 9-10). Mr. Podlofsky has indicated that he has withdrawn from Ms. Green's case and that the firm of Collopy & Carlucci will handle the matter going forward if it is reopened. (Letter of Ira C. Podlofsky dated July 10, 2009).

Discussion

A. Motions Under Rule 60(b)

The plaintiff has requested, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, that the dismissal of her case be set aside. Rule 60(b) allows courts to relieve parties from final judgments or orders for any of six reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for ...


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