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Lewis v. Rutkovsky

Supreme Court of New York, First Department

August 29, 2017

Michelle Lewis, Plaintiff-Respondent,
v.
Frederick D. Rutkovsky, M.D., et al., Defendants-Appellants.

          Gordon & Silber, P.C., New York (Eldar Mayouhas of counsel), for Frederick D. Rutkovsky, M.D., appellant.

          Kaufman Borgeest & Ryan LLP, Valhalla (David A. Beatty of counsel), for LHHN Medical, P.C. and Lenox Hill Community Medical Group, P.C., appellants.

          Law Offices of Annette Hasapidis, White Plains (Annette G. Hasapidis of counsel), for respondent.

          Tom, J.P., Moskowitz, Gische, Kapnick, JJ.

         Order, Supreme Court, New York County (Joan B. Lobis, J.), entered on or about April 21, 2015, which denied defendants' motions for summary judgment as untimely, affirmed, without costs. Appeals from order, same court and Justice, entered April 18, 2016, which, upon effectively granting defendants' motions for reargument, adhered to the prior order, dismissed, without costs, as academic.

         In this medical malpractice action, plaintiff claimed to have suffered injuries as a result of negligent care she received from defendant Frederick D. Rutkovsky, M.D., plaintiff's primary care physician, and, vicariously, from defendant LHHN Medical P.C [1]. Specifically, plaintiff alleged that Dr. Rutkovsky failed to detect, diagnose, and treat a meningioma (that is, a benign brain tumor) from on or about April 3, 1998 until September 5, 2007. In support of her allegations, plaintiff asserted that Dr. Rutkovsky "ignored" her repeated complaints of migraine headaches, blurred vision, and other related symptoms. Plaintiff ultimately underwent a left frontal parasagittal craniotomy and suffered a loss of vision rendering her legally blind. By complaint dated March 5, 2010, plaintiff commenced this action against LHHN Medical, P.C., and Lenox Hill Community Medical Group, P.C. (together LHHN) and Dr. Rutkovsky, alleging medical malpractice and lack of informed consent.

         By order to show cause filed with the County Clerk's office on January 23, 2015 and dated January 28, 2015, LHHN moved for summary judgment. On the motion, LHHN asserted that plaintiff's malpractice claims were time-barred, as she had commenced the action on March 5, 2010, more than two and one-half years after her last appointment with Dr. Rutkovsky at LHHN on September 5, 2007. LHHN further contended, preemptively, that plaintiff's care did not fall within the continuous treatment exception to the statute of limitations because she was not involved in a continuous course of treatment related to her headaches. Dr. Rutkovsky moved separately for summary judgment, filing his order to show cause on January 26, 2015. Like LHHN, Dr. Rutkovsky asserted that plaintiff's claims for treatment before September 5, 2007 were time-barred. Dr. Rutkovsky also asserted that plaintiff's informed consent claim should be dismissed, since plaintiff's allegations did not involve an invasive diagnostic procedure.

         In opposition, plaintiff asserted that defendants' motions could not be entertained because they were untimely. Plaintiff noted that the court's part rules, as set forth in the Preliminary Conference Order, stated that "[m]otions for Summary Judgment and/or other dispositive motions shall be made no later than 60 (sixty) days from the filing of the Note of Issue, unless the Court directs otherwise." [2] Therefore, plaintiff concluded, because the note of issue was filed on November 25, 2014, all dispositive motions were to be made no later than January 26, 2015.

         Plaintiff also opposed defendants' motions on the merits, opining by way of expert affidavits that defendants' actions had constituted deviations from the applicable standard of care. With respect to the statute of limitations, plaintiff argued that her visits from March 1999, when she first complained of headaches to Dr. Rutkovsky, to February 5, 2007, fell under the "continuous treatment" doctrine, and thus, that the doctrine should apply to toll the statute of limitations.

         Dr. Rutkovsky and LHHN argued that their motions were timely because, among other things, on the day they filed their OSCs, court closed early because of Winter Storm Juno, a major storm, and was also closed the following day. The court closings, they argued, led to the delay in obtaining the court's signature on the orders. Nonetheless, defendants argued that they timely filed their OSCs with the court in good faith and within the 60- day time limit, and that the inclement weather contributed to the delay in obtaining the court's signature on the order.

         Basing its decision on its part rules requiring that post note of issue dispositive motions must be made no later than 60 days after the filing of the note of issue, the court found defendants' motions for summary judgment to be untimely. The court rejected defendants' argument that the court's setting of a service and return date constituted approval of the late motion. Rather, the court found the motions to be untimely, as neither party made its motion for summary judgment by January 26, 2015, and, according to the court, neither movant addressed the issue of good cause, which the court could not consider sua sponte. The court accordingly denied defendants' motions without addressing the merits.

         To begin, as a procedural matter, we may properly consider defendants' appeal from the order denying their motion to reargue. In general, an order denying a motion for reargument is not appealable (see e.g. Kitchen v Crotona Park W. Hous. Dev. Fund Corp., 145 A.D.3d 521');">145 A.D.3d 521 [1st Dept 2016]). Here, however, although the motion court purported to deny the motion to reargue, it nonetheless considered the merits of defendants' argument that the inclement weather on the motion's due date provided good cause for the delay. As a result, the court, in effect, granted reargument, then adhered to the original decision (see Matter of 1234 Broadway, LLC v New York State Div. of Hous. & Community Renewal, 102 A.D.3d 628, 629 [1st Dept 2013]). The April 18, 2016 order is therefore appealable (id.).

         Turning now to the merits of this appeal, we find that the motion court improvidently exercised its discretion in finding that the motions were untimely and declining to consider them on that basis. Under CPLR 3212(a), a motion for summary judgment must be made within 120 days of the filing of the note of issue. So long as it is within that time period, the court may set forth its own deadline, in which case the court's directive controls (see McFadden v 530 Fifth Ave. RPS III Assoc., LP, 28 A.D.3d 202, 202-203 [1st Dept 2006]). Accordingly, when a motion for summary judgment is untimely, the movant must show good cause for the delay; otherwise the late motion will not be addressed (see Andron v City of New York, 117 A.D.3d 526');">117 A.D.3d 526 [1st Dept 2014]). Further, a court has broad discretion in determining whether the moving party has established good cause for the delay, and its determination will not be overturned unless it is improvident (see Gonzalez v 98 Mag Leasing Corp., 95 N.Y.2d 124, 129 [2000]).

         Dr. Rutkovsky filed his OSC with the clerk's office on January 26, 2015; the court signed it on January 29, 2015 and Dr. Rutkovsky served it on January 30, 2015. Likewise, LHHN filed its OSC on January 23, 2015; the court signed it on January 28, 2015 and LHHN served it on February 2, 2015. No party disputes that, on the day the orders would usually have been processed and timely signed, inclement weather from Winter Storm Juno created a "state of emergency" and caused the ...


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