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FILED: SUFFOLK COUNTY CLERK 11/14/2022 03:15 PM INDEX NO. 001359/2009
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 11/14/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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DENNIS DOWNES AND JANE DOWNES, Index No.: 001359/2009
PLAINTIFFS, AFFIRMATION IN
OPPOSITION
-AGAINST-
Hon. Paul J. Baisley, Jr. JSC
CHARLES G. ARCOLEO, MD; RAJOO C. PATEL, MD;
SOUTHAMPTON HOSPITAL; AND SOUTHAMPTON Returnable: Nov. 17, 2022
HOSPITAL ASSOCIATION,
DEFENDANTS.
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Joseph M. Bisch an attorney duly admitted to practice law before the Courts of the State
of New York, hereby affirms the following to be true under the penalty of perjury:
1. I am a member of the law offices of BARBIERO, BISCH O’CONNOR &
COMMANDER LLP, attorneys for the Defendant, SOUTHAMPTON HOSPITAL (hereinafter
“SOUTHAMPTON”), in the above-referenced matter. I am fully familiar with the facts and
circumstances of this action by virtue of a review of the file maintained by our office and based
upon my day to day handling of this case.
2. This affirmation in submitted in opposition to the plaintiff’s motion, which seeks
an Order:
a. Pursuant to CPLR §3025(b)&(c), allowing plaintiff to amend the
various Bills of Particular in order to assert new allegations of
malpractice not previously pled; to conform the pleadings to the
proof; to deem the amended Bill of Particulars timely served as
against all defendants; and for such other and different relief as this
Court deems just, proper, and equitable.
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3. It is respectfully submitted that plaintiff’s instant motion must be denied:
a. As the theories were not previously alleged in the complaint or
within previous Bills of Particular, and / or supplements and / or
amendments thereto;
b. As granting the plaintiff the requested relief would cause substantial
prejudice to the defendants, including SOUTHAMPTON
HOSPITAL;
c. As the Hon. Joseph A. Santorelli, J.S.C., has already decided that
the plaintiff is precluded from offering the proposed new theories of
negligence and / or liability, as per Justice Santorelli’s Order of
September 21, 2022;
d. As the plaintiff has failed to make the necessary showing of “special
and extraordinary circumstances”; and
e. As the plaintiff has also failed to proffer any reasonable excuse for
his delay in seeking these amendments and / or any aspect of the
requested relief.
PROCEDURAL HISTORY
4. This action was commenced by the filing of the Summons and Complaint on or
about January 7, 2009. Issue was joined by the defendant herein SOUTHAMPTON HOSPITAL,
on or about February 2, 2009. Annexed hereto and made part hereof as Exhibit “A”, is a copy of
the plaintiff’s Summons and Complaint. Annexed hereto and made part hereof as Exhibit “B”, is
a copy of the Answer of the defendant SOUTHAMPTON.
5. Thereafter, in response to the defendant’s demand, plaintiff served a Verified Bill
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of Particulars on or about July 14, 2009 (Exhibit “C”). The plaintiffs thereafter served additional
amended and/or supplemental bills of particulars as to the movants, including an Amended
Verified Bill of Particulars on or about January 17, 2014 (Exhibit “D”), a Supplemental Verified
Bill of Particulars on or about April 14, 2014 (“Exhibit “E”), a Supplemental Verified Bill of
Particulars on or about July 19, 2016 (Exhibit “F”), and a Further Supplemental Verified Bill of
Particulars on or about January 5, 2017 (Exhibit “G”).On December 17, 2013, the matter was
certified as ready for trial during the course of a Compliance Conference before the Honorable W.
Gerard Asher.
6. On or about January 20, 2014, plaintiffs served their initial Expert Witness
Disclosure (Exhibit “H”) as well as a purported Supplemental Expert Witness Disclosure
(Exhibit “I”).
7. Thereafter, the plaintiff served a Note of Issue and Certificate of Readiness on
January 21, 2014. Annexed hereto and made part hereof as Exhibit “J”, is the Note of Issue,
Certificate of Readiness, and Compliance / Certification Conference Order.
8. Thereafter, motions for summary judgment were made. Those various motions for
summary judgment were decided by the Hon. W. Gerard Asher, JSC, in an Order dated July 12,
2016. A copy of the decision of Justice Asher, is annexed hereto and made part hereof as Exhibit
“K”.
9. Thereafter, plaintiffs served various amended and/or supplemental expert
disclosures, including an “Amended Supplemental” Expert Witness Disclosure on or about
October 4, 2016 (Exhibit “L”); a Supplemental Expert Witness Disclosure on or about September
8, 2021 (Exhibit “M”), and a “Supplemental / Amended” Expert Witness Disclosure on or about
September 27, 2021 (Exhibit “N”).
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10. Trial of this matter commenced on November 8, 2021, with opening statements
following the completion of jury selection. On November 9, 2021, a mistrial was declared by the
Hon. Joseph A. Santorelli, J.S.C., due to juror misconduct. On July 26, 2022, plaintiffs served an
additional Supplemental Amended Expert Witness Disclosure (Exhibit “O”).
11. Jury selection for the re-trial commenced on September 12, 2022, and this matter
was once again assigned to the Hon. Joseph A. Santorelli, J.S.C., for trial. Given that the claims
set forth within the Supplemental / Amended Expert Witness disclosure dated July 26, 2022, had
gone beyond the allegations of malpractice that had been previously pled, motions in limine were
brought before Justice Santorelli by counsel for all defendants. By Order dated September 21,
2022, Justice Santorelli granted the motions in limine of all the defendants, precluding the
plaintiff’s expert from providing testimony concerning the new theories of negligence not
previously pled or set forth within any pleading or bill of particulars. A copy of Justice Santorelli’s
Order with Notice of Entry is annexed hereto and made part hereof as Exhibit “P”.
12. Within Justice Santorelli’s Order, the Court specifically ruled that:
Based upon a review of the papers submitted, this Court concludes that the
alleged departures pertaining to the obligation of the defendants to inform the
plaintiffs that, in sum; (1) Southampton Hospital did not have a catheterization lab
and did not have the ability to perform cardiac catheterization; (2) once Dr.
Arcoleo left the hospital no doctor would be physically present to care for him;
and (3) there were limitations as to care Southampton Hospital could provide were
not set forth in any of the pleadings, bills of particular or expert witness notices
prior to July 26, 2022; supplemental amended witness disclosure, nor were these
new theories “readily discernible” from the allegations set forth in the bills of
particulars or prior expert witness notices (see, generally, Navarette v. Alexaides,
50 AD3d 869 [2d Dept. 2008].
13. The trial was to have commenced on September 26, 2022. However, on or about
September 23, 2022, counsel for all parties were informed that Dr. Arcoleo had sustained a hip
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fracture for which he underwent surgery. Given Dr. Arcoleo’s medical unavailability, a second
mistrial was declared by Justice Santorelli on September 26, 2022.
14. According to plaintiffs’ most Supplemental Amended Expert Witness Disclosure,
dated July 26, 2022 (Exhibit “J”), it is expected that plaintiffs’ expert will testify as to new
and/or additional theories of liability, beyond that which has been alleged in the Complaint, the
bills of particulars and any amendments or supplements thereto, and the prior expert disclosures.
In that regard, the plaintiffs contend, for the first time a mere month and a half in advance of jury
selection, that their expert will testify that:
all patients have a right to be kept informed about their clinical/medical
circumstances as well as the limitations of the treating facility. All physicians,
nurses and hospitals have a medical duty to keep a patient reasonably apprised of
their medical condition as well as the resources of the hospital/facility should a
need for further treatment apply. In 2006 Southampton hospital did not have a
catheterization lab and did not have the ability to perform cardiac catheterization.
The expert will likely testify that under the circumstances of Mr. Downes
presentation to Southampton hospital. Dr. Patel, Dr. Arcoleo and/or Southampton
Hospital, its agents, employees and/or nurses had an obligation to inform Mr.
Downes that if the need arose to perform cardiac catheterization they would be
unable to do so. The expert will also likely testify that the failure to inform Mr.
Downes that Southampton hospital did not have a cardiac catheterization lab and
provide him the option, given his condition, to seek care at a hospital with a cardiac
catheterization lab. The failure to provide Mr. Downes with this information was a
departure from standards of good and accepted medical practice and was a
proximate cause and/or substantial contributing factor to the delay in diagnosis
and treatment of Mr. Downes’ heart attack and deprived him of a substantial
chance for a better medical outcome.” (See, P.27-28).
Additionally, in that regard, the plaintiffs contend, that their expert will testify that:
Dr. Arcoleo & Southampton hospital had a duty and obligation to inform
Mr. Downes that once Dr. Arcoleo left the facility, no individual doctor would be
physically present on hospital grounds/campus to take care of Mr. Downes. This
information should have been relayed to Mr. Downes to allow him to make an
informed decision regarding remaining in the facility after 8:00 p.m. The failure to
alert Mr. Downes that no physician would be physically present to take care of him
in the hospital after 8:00 p.m. was a departure from standards of good and accepted
medical practice and deprived Mr. Downes of the option of receiving care at
another hospital prior to Mr. Downes acute coronary syndrome reaching a critical
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level. This failure deprived Mr. Downes of a substantial opportunity for a better
medical outcome. In addition, when the nurses could not reach Dr. Patel after
several calls Southampton hospital, it's nurses, agents and/or employees should
have given Mr. Downes the option to call an ambulance himself and be transferred
to a facility with both a catheterization lab and physicians who were physically
present in the hospital.” (P.28-29).
The plaintiffs additionally contend, that their expert will testify that:
Dr. Patel, Dr. Arcoleo and/or the agents/servants of Southampton Hospital
had a medical duty to inform Mr. Downes of the limitations of their facility at the
time. The expert will likely testify that the failure of Dr. Patel, Dr. Arcoleo and/or
the agents and/or employees of Southampton hospital to inform Mr. Downes that
they did not have a cardiac catheterization lab onsite was a departure from
standards of good and accepted medical practice and was a proximate cause
and/or substantial contributing factor to the delay in diagnosis of Mr. Downes'
myocardial infarction. This delay lead to the progression and development of Mr.
Downes myocardial infarction and deprived him of a substantial chance for a better
medical outcome. The expert will likely testify that all clinicians have a duty to keep
patients reasonably informed not only about their conditions but the limitations of
the facility in which the patient is in. The expert will likely testify that when Mr.
Downes experienced an arrythmia, the clinicians at Southampton, including
defendants, Patel, Arcoleo & Southampton were obligated by standards of good
and accepted medical practice to inform Mr. Downes that a cardiac catheterization
lab was not available and in the event of a myocardial infarction that required
catheterization he would have to be transferred to Stony Brook Hospital. Without
this information Mr. Downes was essentially uninformed about a real potential
clinical outcome in his case. The expert may also testify that when the on call
cardiologist, Dr. Patel, did not return the nurse’s phone call the nurses, including
Nurse Knight were obligated to inform Mr. Downes that they could not reach Dr.
Patel. The expert will likely testify that had Mr. Downes been informed about the
inability to have a cardiac catheterization performed at Southampton and chose to
leave or call for emergency assistance, there is a substantial chance that Mr.
Downes would have avoided all or most of the damage to his heart cause by the
untimely diagnosed and treated myocardial infarction. (P36-37).
The plaintiffs additionally contend, that their expert will testify that:
[p]atients have the right to be kept reasonably informed about the potential
risks of their signs, symptoms and presentation but also have a right to be informed
about the availability of care. The expert will likely testify that in their opinion,
within a reasonable degree of medical certainty, Mr. Downes should have been told
that after 8:00 p.m. no physician would be in the hospital to take care of him. In
addition, the expert will likely testify that standards of good and accepted medical
practice required Southampton hospital and/or its employees/nurses including
Nurse Knight to inform Mr. Downes that they could not reach the on-call
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cardiologist Dr. Patel who was needed to make decisions about Mr. Downes care.
The expert will likely testify that standards of good and accepted medical practice
required that Mr. Downes should have been given the option to leave Southampton
hospital and/or receive immediate emergency transport as soon as the first
arrythmia appeared on telemetry. The expert will likely testify that the failure of
any of the defendants and/or their employees/agents to offer Mr. Downes the option
to leave the hospital on his own accord or in emergency transport was a departure
from good and accepted medical practice and was a proximate cause and/or
substantial contributing factor to the progression and development of Mr. Downes
myocardial infarction. This departure deprived Mr. Downes of a substantial chance
for a better medical outcome. (P. 37-38).
Finally, the plaintiffs additionally contend, that their expert will testify that:
Mr. Downes was not kept reasonably informed regarding his medical care
and status and was also not kept informed about the limitations of Southampton
hospital and the risks to him if he were to stuff myocardial infarction. Mr. Downes
was not told at any time prior to reaching a critical and unstable stage at or near
11 :00 p.m. that he could or would need a cardiac catheterization, that
Southampton hospital could not perform cardiac catheterizations and that no
physician would be physically present in the hospital and the nearest cardiac
catheterization laboratory that could treat Mr. Downes in the event of a full blown
myocardial infarction. Patients should be kept reasonably informed about the
potential and foreseeable risks given their presentation, medical history and the
limitations and resources of a patient’s treating facility. The failure of Dr.Patel,
Dr. Arcoleo, Southampton Hospital, and its agents/employees and/or nurses to
keep Mr. Downes informed that no physician would be present after 8:00 p.m. and
in the event of a full blown myocardial infarction necessary, emergent, and vital
treatment was over an hour away at Stony Brook University Hospital. The failure
to keep Mr. Downes informed of the risks of his condition and the limitations of
Southampton hospital given both the lack of cardiac catheterization laboratory and
lack of physician presence once Dr. Arcoleo left the hospital. (P.47-48).
16. It should be underscored, that the September 21, 2022, Order of Justice Santorelli,
has already resolved these issues, and the Court has already granted defense motions to preclude
the plaintiff’s expert from offering testimony on new theories of liability.
PLAINTIFF HAS NOT SUSTAINED THE NECESSARY BURDEN
17. As was noted above, the plaintiff seeks this relief after discovery has been
completed, and the case has been certified as ready for trial. The Second Department has spoken
on this subject. In Skerrett v. LIC Site B2 Owner, LLC, 199 A.D.3d 956 (2d Dept. 2021), the
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Court stated that, "[O]nce discovery has been completed and the case has been certified as ready
for trial, [a] party will not be permitted to amend the bill of particulars except upon a showing of
special and extraordinary circumstances" [emphasis added] (Cioffi v S.M. Foods, Inc., 178
AD3d 1015, 1016, 116 N.Y.S.3d 68 [internal quotation marks omitted]; see Anonymous v
Gleason, 175 AD3d 614, 617, 106 N.Y.S.3d 353). "'[L]eave to amend a bill of particulars may
properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing
of merit, and the amendment involves no new factual allegations, raises no new theories of
liability, and causes no prejudice to the defendant'" (Cioffi v S.M. Foods, Inc., 178 AD3d at 1016,
quoting Ortiz v Chendrasekhar, 154 AD3d 867, 869, 63 N.Y.S.3d 403).
18. It is respectfully submitted that the plaintiff herein seeks to raise new theories of
liability, and that granting the plaintiff the requested relief would cause these defendants, including
SOUTHAMPTON HOSPITAL prejudice. In addition, it should be underscored that the plaintiff
seeks these amendments, well after discovery has been completed, and that the moving plaintiff
has failed to proffer a reasonable excuse for his delay in seeking these amendments. As such,
it is respectfully submitted that the plaintiff’s request for an Order must be denied. See, Achee v.
Merrick Village, Inc., 208 A.D.3d 542 (2d Dept. 2022), citing Skerrett v LIC Site B2 Owner, LLC,
199 AD3d at 956; King v Marwest, LLC, 192 AD3d at 876; Morris v Queens Long Is. Med. Group,
P.C., 49 AD3d 827, 828-829, 854 N.Y.S.2d 222; see also Carminati v Roman Catholic Diocese of
Rockville Ctr., 6 AD3d 481, 482, 774 N.Y.S.2d 413).
18. It is respectfully submitted that the plaintiff has failed to make the necessary
showing of “special and extraordinary circumstances” and has also failed to proffer any reasonable
excuse for his delay in seeking these amendments.
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19. I have read and reviewed the affirmation in opposition to the instant motion of
Geoffrey H. Pforr, Esq., counsel for Dr. Arcoleo, and would join in the arguments set forth within
his affirmation. Specifically, on behalf of SOUTHAMPTON HOSPITAL, I would join in the
argument that, “when leave to amend a Bill of Particulars to allege new theories of liability not
raised in the complaint” or the original Bill is sought to be amended on the eve of trial, that “judicial
discretion should be exercised sparingly, and should be discrete, circumspect, prudent and
cautious.” See, Navarette v Alexiades, 50 A.D.3d 869, 871 (2d Dept. 2008); see also, Reape v.
State of New York, 272 A.D.2d 533 (2d Dept. 2000); Volpe v. Good Samaritan Hospital, 213
A.D.2d 398 (2d Dept. 1995).
20. As to the plaintiff’s arguments purportedly grounded in 10 NYCRR 405.17, it is
respectfully submitted that section concerns “Pharmaceutical services”. I would also note that the
history of that section indicates that section was enacted in 1988, and then subsequently amended
on multiple occasions, with the last amendment coming in 2013. Specifically, the history section
of that rule memorializes that the section was:
Repealed and added 405.17 on 8/11/88; amended 405.17 on 1/01/89; amended
405.17(a) opening paragraph on 12/31/13; amended 405.17(a)(2)(i) on 12/31/13;
amended 405.17(a)(9)(i) on 12/31/13; amended 405.17(b) opening paragraph on
12/31/13; amended 405.17(b)(1) on 12/31/13.
21. The plaintiff has not specifically stated which section he relies upon. Additionally,
it is respectfully submitted that all preceding arguments regarding plaintiff’s failure to provide an
excuse for his delay in seeking the relief requested herein also apply equally to any argument
grounded in 10 NYCRR 405.17.
22. I would also join in those arguments of Attorney Pforr that plaintiff’s reliance upon
Adams v. Jamaica Hospital, 258 A.D.2d 604, (2d Dept. 1999); Morales v. County of Nassau, 94
N.Y.2d 218 (1999); Murray v. City of New York, 43 N.Y.2d 400 (1977); Gonfiantini v. Zino, 184
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A.D.2d 360 (1stDept. 1992); Dittmar Explosives v. A.E. Ottaviano, Inc., 20 N.Y.2d 498, 503
(1967); and Bryant v. Broadcast Music, 60 A.D.3d 799 (2d Dept., 1999), is misplaced as those
cases are inapposite.
23. I have read and reviewed the affirmation in opposition to the instant motion of Mark
Khavkin, Esq., counsel for Dr. Patel, and would join in the arguments set forth within his
affirmation. Specifically, on behalf of SOUTHAMPTON HOSPITAL, I would join in the
argument that the doctrine of the “law of the case” should govern herein, and that as per the ruling
of the Hon. Joseph A. Santorelli, that these issues have already been litigated and the plaintiff
should not be relitigated. See, Tischler v. Key One Corp., 67 A.D.2d 886 (1st Dept. 1979);
Glynwill Investments, N.V. v. Shearson Lehman Hutton, Inc., 216 A.D.2d 78 (1st Dept. 1995);
Carmona v. Mathisson, 92 A.D.3d 492, 493 (1st Dept. 2012).
24. I would also note that while I agree with Attorney Khavkin, that if there where there
has been a change in circumstances following the filing of the Note of Issue such as when an
amended bill of particular is served, that vacating the Note of Issue to conduct appropriate
discovery is warranted. Citing, Steifman v. Mikhail Khenin, Ultisave, LLC, 2010 WL 5698454
(Supreme Court, Westchester County, June 9, 2010, Justice Scheinkman, Index No. 08271-2007).
However, I would respectfully submit that the prospect of continued discovery on events which
occurred in October of 2006, underscores one aspect of the prejudice that the defendants herein
would face if the plaintiff were granted the relief requested in the instant motion. It is beyond
argument that if the Note of Issue is stricken, that we would then need to depose the plaintiff once
again on issues pertaining to the new allegations of negligence. That means that we would need
to question the plaintiff about specific interactions that he had more than sixteen years ago. We
do not know what testimony the plaintiff would offer at any such deposition, but it is beyond
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argument that Mr. Downes’ ability to accurately answer such questions pertaining to these new
issues would have been much better had these amendments had been made many years ago.
CONCLUSION
25. For the reasons set forth in this affirmation, itis respectfully requested that this
Honorable Court deny the plaintiffs request for an Order pursuant to CPLR §3025(b)&(c),
allowing plaintiff to amend the various Bills of Particular in order to assert new allegations of
malpractice not previously pled; to conform the pleadings to the proof; to deem the amended Bill
of Particulars timely served as against all defendants; and for such other and different relief as this
Court deems just, proper, and equitable.
WHEREFORE, it is respectfully requested that this Honorable Court issue an Order:
Denying the plaintiffs request for an Order pursuant to CPLR §3025(b)&(c), allowing
plaintiff to amend the various Bills of Particular in order to assert new allegations of malpractice
not previously pled; to conform the pleadings to the proof; to deem the amended Bill of Particulars
timely served as against all defendants; and for such other and different relief as this Court deems
just, proper, and equitable;
Together with such other, further, and different relief as this Court deems just, proper, and
equitable.
Dated: Melville, New York
November 14, 2022
________________________________
Joseph M. Bisch
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CERTIFICATE OF COMPLIANCE
Joseph M. Bisch, attorney for the Defendant, SOUTHAMPTON HOSPITAL, ,
hereby certifies that the total number of words in this Affirmation in Opposition, exclusive of
caption, is 3,678.
Dated: Melville, New York
November 14, 2022
_______________________
JOSEPH M. BISCH
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FILED: SUFFOLK COUNTY CLERK 11/14/2022 03:15 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 11/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK --------------------------------------------------------------------X DENNIS DOWNES AND JANE DOWNES, Index No.: 001359/2009 PLAINTIFFS, AFFIRMATION IN OPPOSITION -AGAINST- Hon. Paul J. Baisley, Jr. JSC CHARLES G. ARCOLEO, MD; RAJOO C. PATEL, MD; SOUTHAMPTON HOSPITAL; AND SOUTHAMPTON Returnable: Nov. 17, 2022 HOSPITAL ASSOCIATION, DEFENDANTS. --------------------------------------------------------------------X Joseph M. Bisch an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalty of perjury: 1. I am a member of the law offices of BARBIERO, BISCH O’CONNOR & COMMANDER LLP, attorneys for the Defendant, SOUTHAMPTON HOSPITAL (hereinafter “SOUTHAMPTON”), in the above-referenced matter. I am fully familiar with the facts and circumstances of this action by virtue of a review of the file maintained by our office and based upon my day to day handling of this case. 2. This affirmation in submitted in opposition to the plaintiff’s motion, which seeks an Order: a. Pursuant to CPLR §3025(b)&(c), allowing plaintiff to amend the various Bills of Particular in order to assert new allegations of malpractice not previously pled; to conform the pleadings to the proof; to deem the amended Bill of Particulars timely served as against all defendants; and for such other and different relief as this Court deems just, proper, and equitable. 1 of 12 FILED: SUFFOLK COUNTY CLERK 11/14/2022 03:15 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 11/14/2022 3. It is respectfully submitted that plaintiff’s instant motion must be denied: a. As the theories were not previously alleged in the complaint or within previous Bills of Particular, and / or supplements and / or amendments thereto; b. As granting the plaintiff the requested relief would cause substantial prejudice to the defendants, including SOUTHAMPTON HOSPITAL; c. As the Hon. Joseph A. Santorelli, J.S.C., has already decided that the plaintiff is precluded from offering the proposed new theories of negligence and / or liability, as per Justice Santorelli’s Order of September 21, 2022; d. As the plaintiff has failed to make the necessary showing of “special and extraordinary circumstances”; and e. As the plaintiff has also failed to proffer any reasonable excuse for his delay in seeking these amendments and / or any aspect of the requested relief. PROCEDURAL HISTORY 4. This action was commenced by the filing of the Summons and Complaint on or about January 7, 2009. Issue was joined by the defendant herein SOUTHAMPTON HOSPITAL, on or about February 2, 2009. Annexed hereto and made part hereof as Exhibit “A”, is a copy of the plaintiff’s Summons and Complaint. Annexed hereto and made part hereof as Exhibit “B”, is a copy of the Answer of the defendant SOUTHAMPTON. 5. Thereafter, in response to the defendant’s demand, plaintiff served a Verified Bill 2 of 12 FILED: SUFFOLK COUNTY CLERK 11/14/2022 03:15 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 11/14/2022 of Particulars on or about July 14, 2009 (Exhibit “C”). The plaintiffs thereafter served additional amended and/or supplemental bills of particulars as to the movants, including an Amended Verified Bill of Particulars on or about January 17, 2014 (Exhibit “D”), a Supplemental Verified Bill of Particulars on or about April 14, 2014 (“Exhibit “E”), a Supplemental Verified Bill of Particulars on or about July 19, 2016 (Exhibit “F”), and a Further Supplemental Verified Bill of Particulars on or about January 5, 2017 (Exhibit “G”).On December 17, 2013, the matter was certified as ready for trial during the course of a Compliance Conference before the Honorable W. Gerard Asher. 6. On or about January 20, 2014, plaintiffs served their initial Expert Witness Disclosure (Exhibit “H”) as well as a purported Supplemental Expert Witness Disclosure (Exhibit “I”). 7. Thereafter, the plaintiff served a Note of Issue and Certificate of Readiness on January 21, 2014. Annexed hereto and made part hereof as Exhibit “J”, is the Note of Issue, Certificate of Readiness, and Compliance / Certification Conference Order. 8. Thereafter, motions for summary judgment were made. Those various motions for summary judgment were decided by the Hon. W. Gerard Asher, JSC, in an Order dated July 12, 2016. A copy of the decision of Justice Asher, is annexed hereto and made part hereof as Exhibit “K”. 9. Thereafter, plaintiffs served various amended and/or supplemental expert disclosures, including an “Amended Supplemental” Expert Witness Disclosure on or about October 4, 2016 (Exhibit “L”); a Supplemental Expert Witness Disclosure on or about September 8, 2021 (Exhibit “M”), and a “Supplemental / Amended” Expert Witness Disclosure on or about September 27, 2021 (Exhibit “N”). 3 of 12 FILED: SUFFOLK COUNTY CLERK 11/14/2022 03:15 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 11/14/2022 10. Trial of this matter commenced on November 8, 2021, with opening statements following the completion of jury selection. On November 9, 2021, a mistrial was declared by the Hon. Joseph A. Santorelli, J.S.C., due to juror misconduct. On July 26, 2022, plaintiffs served an additional Supplemental Amended Expert Witness Disclosure (Exhibit “O”). 11. Jury selection for the re-trial commenced on September 12, 2022, and this matter was once again assigned to the Hon. Joseph A. Santorelli, J.S.C., for trial. Given that the claims set forth within the Supplemental / Amended Expert Witness disclosure dated July 26, 2022, had gone beyond the allegations of malpractice that had been previously pled, motions in limine were brought before Justice Santorelli by counsel for all defendants. By Order dated September 21, 2022, Justice Santorelli granted the motions in limine of all the defendants, precluding the plaintiff’s expert from providing testimony concerning the new theories of negligence not previously pled or set forth within any pleading or bill of particulars. A copy of Justice Santorelli’s Order with Notice of Entry is annexed hereto and made part hereof as Exhibit “P”. 12. Within Justice Santorelli’s Order, the Court specifically ruled that: Based upon a review of the papers submitted, this Court concludes that the alleged departures pertaining to the obligation of the defendants to inform the plaintiffs that, in sum; (1) Southampton Hospital did not have a catheterization lab and did not have the ability to perform cardiac catheterization; (2) once Dr. Arcoleo left the hospital no doctor would be physically present to care for him; and (3) there were limitations as to care Southampton Hospital could provide were not set forth in any of the pleadings, bills of particular or expert witness notices prior to July 26, 2022; supplemental amended witness disclosure, nor were these new theories “readily discernible” from the allegations set forth in the bills of particulars or prior expert witness notices (see, generally, Navarette v. Alexaides, 50 AD3d 869 [2d Dept. 2008]. 13. The trial was to have commenced on September 26, 2022. However, on or about September 23, 2022, counsel for all parties were informed that Dr. Arcoleo had sustained a hip 4 of 12 FILED: SUFFOLK COUNTY CLERK 11/14/2022 03:15 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 11/14/2022 fracture for which he underwent surgery. Given Dr. Arcoleo’s medical unavailability, a second mistrial was declared by Justice Santorelli on September 26, 2022. 14. According to plaintiffs’ most Supplemental Amended Expert Witness Disclosure, dated July 26, 2022 (Exhibit “J”), it is expected that plaintiffs’ expert will testify as to new and/or additional theories of liability, beyond that which has been alleged in the Complaint, the bills of particulars and any amendments or supplements thereto, and the prior expert disclosures. In that regard, the plaintiffs contend, for the first time a mere month and a half in advance of jury selection, that their expert will testify that: all patients have a right to be kept informed about their clinical/medical circumstances as well as the limitations of the treating facility. All physicians, nurses and hospitals have a medical duty to keep a patient reasonably apprised of their medical condition as well as the resources of the hospital/facility should a need for further treatment apply. In 2006 Southampton hospital did not have a catheterization lab and did not have the ability to perform cardiac catheterization. The expert will likely testify that under the circumstances of Mr. Downes presentation to Southampton hospital. Dr. Patel, Dr. Arcoleo and/or Southampton Hospital, its agents, employees and/or nurses had an obligation to inform Mr. Downes that if the need arose to perform cardiac catheterization they would be unable to do so. The expert will also likely testify that the failure to inform Mr. Downes that Southampton hospital did not have a cardiac catheterization lab and provide him the option, given his condition, to seek care at a hospital with a cardiac catheterization lab. The failure to provide Mr. Downes with this information was a departure from standards of good and accepted medical practice and was a proximate cause and/or substantial contributing factor to the delay in diagnosis and treatment of Mr. Downes’ heart attack and deprived him of a substantial chance for a better medical outcome.” (See, P.27-28). Additionally, in that regard, the plaintiffs contend, that their expert will testify that: Dr. Arcoleo & Southampton hospital had a duty and obligation to inform Mr. Downes that once Dr. Arcoleo left the facility, no individual doctor would be physically present on hospital grounds/campus to take care of Mr. Downes. This information should have been relayed to Mr. Downes to allow him to make an informed decision regarding remaining in the facility after 8:00 p.m. The failure to alert Mr. Downes that no physician would be physically present to take care of him in the hospital after 8:00 p.m. was a departure from standards of good and accepted medical practice and deprived Mr. Downes of the option of receiving care at another hospital prior to Mr. Downes acute coronary syndrome reaching a critical 5 of 12 FILED: SUFFOLK COUNTY CLERK 11/14/2022 03:15 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 11/14/2022 level. This failure deprived Mr. Downes of a substantial opportunity for a better medical outcome. In addition, when the nurses could not reach Dr. Patel after several calls Southampton hospital, it's nurses, agents and/or employees should have given Mr. Downes the option to call an ambulance himself and be transferred to a facility with both a catheterization lab and physicians who were physically present in the hospital.” (P.28-29). The plaintiffs additionally contend, that their expert will testify that: Dr. Patel, Dr. Arcoleo and/or the agents/servants of Southampton Hospital had a medical duty to inform Mr. Downes of the limitations of their facility at the time. The expert will likely testify that the failure of Dr. Patel, Dr. Arcoleo and/or the agents and/or employees of Southampton hospital to inform Mr. Downes that they did not have a cardiac catheterization lab onsite was a departure from standards of good and accepted medical practice and was a proximate cause and/or substantial contributing factor to the delay in diagnosis of Mr. Downes' myocardial infarction. This delay lead to the progression and development of Mr. Downes myocardial infarction and deprived him of a substantial chance for a better medical outcome. The expert will likely testify that all clinicians have a duty to keep patients reasonably informed not only about their conditions but the limitations of the facility in which the patient is in. The expert will likely testify that when Mr. Downes experienced an arrythmia, the clinicians at Southampton, including defendants, Patel, Arcoleo & Southampton were obligated by standards of good and accepted medical practice to inform Mr. Downes that a cardiac catheterization lab was not available and in the event of a myocardial infarction that required catheterization he would have to be transferred to Stony Brook Hospital. Without this information Mr. Downes was essentially uninformed about a real potential clinical outcome in his case. The expert may also testify that when the on call cardiologist, Dr. Patel, did not return the nurse’s phone call the nurses, including Nurse Knight were obligated to inform Mr. Downes that they could not reach Dr. Patel. The expert will likely testify that had Mr. Downes been informed about the inability to have a cardiac catheterization performed at Southampton and chose to leave or call for emergency assistance, there is a substantial chance that Mr. Downes would have avoided all or most of the damage to his heart cause by the untimely diagnosed and treated myocardial infarction. (P36-37). The plaintiffs additionally contend, that their expert will testify that: [p]atients have the right to be kept reasonably informed about the potential risks of their signs, symptoms and presentation but also have a right to be informed about the availability of care. The expert will likely testify that in their opinion, within a reasonable degree of medical certainty, Mr. Downes should have been told that after 8:00 p.m. no physician would be in the hospital to take care of him. In addition, the expert will likely testify that standards of good and accepted medical practice required Southampton hospital and/or its employees/nurses including Nurse Knight to inform Mr. Downes that they could not reach the on-call 6 of 12 FILED: SUFFOLK COUNTY CLERK 11/14/2022 03:15 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 11/14/2022 cardiologist Dr. Patel who was needed to make decisions about Mr. Downes care. The expert will likely testify that standards of good and accepted medical practice required that Mr. Downes should have been given the option to leave Southampton hospital and/or receive immediate emergency transport as soon as the first arrythmia appeared on telemetry. The expert will likely testify that the failure of any of the defendants and/or their employees/agents to offer Mr. Downes the option to leave the hospital on his own accord or in emergency transport was a departure from good and accepted medical practice and was a proximate cause and/or substantial contributing factor to the progression and development of Mr. Downes myocardial infarction. This departure deprived Mr. Downes of a substantial chance for a better medical outcome. (P. 37-38). Finally, the plaintiffs additionally contend, that their expert will testify that: Mr. Downes was not kept reasonably informed regarding his medical care and status and was also not kept informed about the limitations of Southampton hospital and the risks to him if he were to stuff myocardial infarction. Mr. Downes was not told at any time prior to reaching a critical and unstable stage at or near 11 :00 p.m. that he could or would need a cardiac catheterization, that Southampton hospital could not perform cardiac catheterizations and that no physician would be physically present in the hospital and the nearest cardiac catheterization laboratory that could treat Mr. Downes in the event of a full blown myocardial infarction. Patients should be kept reasonably informed about the potential and foreseeable risks given their presentation, medical history and the limitations and resources of a patient’s treating facility. The failure of Dr.Patel, Dr. Arcoleo, Southampton Hospital, and its agents/employees and/or nurses to keep Mr. Downes informed that no physician would be present after 8:00 p.m. and in the event of a full blown myocardial infarction necessary, emergent, and vital treatment was over an hour away at Stony Brook University Hospital. The failure to keep Mr. Downes informed of the risks of his condition and the limitations of Southampton hospital given both the lack of cardiac catheterization laboratory and lack of physician presence once Dr. Arcoleo left the hospital. (P.47-48). 16. It should be underscored, that the September 21, 2022, Order of Justice Santorelli, has already resolved these issues, and the Court has already granted defense motions to preclude the plaintiff’s expert from offering testimony on new theories of liability. PLAINTIFF HAS NOT SUSTAINED THE NECESSARY BURDEN 17. As was noted above, the plaintiff seeks this relief after discovery has been completed, and the case has been certified as ready for trial. The Second Department has spoken on this subject. In Skerrett v. LIC Site B2 Owner, LLC, 199 A.D.3d 956 (2d Dept. 2021), the 7 of 12 FILED: SUFFOLK COUNTY CLERK 11/14/2022 03:15 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 11/14/2022 Court stated that, "[O]nce discovery has been completed and the case has been certified as ready for trial, [a] party will not be permitted to amend the bill of particulars except upon a showing of special and extraordinary circumstances" [emphasis added] (Cioffi v S.M. Foods, Inc., 178 AD3d 1015, 1016, 116 N.Y.S.3d 68 [internal quotation marks omitted]; see Anonymous v Gleason, 175 AD3d 614, 617, 106 N.Y.S.3d 353). "'[L]eave to amend a bill of particulars may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant'" (Cioffi v S.M. Foods, Inc., 178 AD3d at 1016, quoting Ortiz v Chendrasekhar, 154 AD3d 867, 869, 63 N.Y.S.3d 403). 18. It is respectfully submitted that the plaintiff herein seeks to raise new theories of liability, and that granting the plaintiff the requested relief would cause these defendants, including SOUTHAMPTON HOSPITAL prejudice. In addition, it should be underscored that the plaintiff seeks these amendments, well after discovery has been completed, and that the moving plaintiff has failed to proffer a reasonable excuse for his delay in seeking these amendments. As such, it is respectfully submitted that the plaintiff’s request for an Order must be denied. See, Achee v. Merrick Village, Inc., 208 A.D.3d 542 (2d Dept. 2022), citing Skerrett v LIC Site B2 Owner, LLC, 199 AD3d at 956; King v Marwest, LLC, 192 AD3d at 876; Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827, 828-829, 854 N.Y.S.2d 222; see also Carminati v Roman Catholic Diocese of Rockville Ctr., 6 AD3d 481, 482, 774 N.Y.S.2d 413). 18. It is respectfully submitted that the plaintiff has failed to make the necessary showing of “special and extraordinary circumstances” and has also failed to proffer any reasonable excuse for his delay in seeking these amendments. 8 of 12 FILED: SUFFOLK COUNTY CLERK 11/14/2022 03:15 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 11/14/2022 19. I have read and reviewed the affirmation in opposition to the instant motion of Geoffrey H. Pforr, Esq., counsel for Dr. Arcoleo, and would join in the arguments set forth within his affirmation. Specifically, on behalf of SOUTHAMPTON HOSPITAL, I would join in the argument that, “when leave to amend a Bill of Particulars to allege new theories of liability not raised in the complaint” or the original Bill is sought to be amended on the eve of trial, that “judicial discretion should be exercised sparingly, and should be discrete, circumspect, prudent and cautious.” See, Navarette v Alexiades, 50 A.D.3d 869, 871 (2d Dept. 2008); see also, Reape v. State of New York, 272 A.D.2d 533 (2d Dept. 2000); Volpe v. Good Samaritan Hospital, 213 A.D.2d 398 (2d Dept. 1995). 20. As to the plaintiff’s arguments purportedly grounded in 10 NYCRR 405.17, it is respectfully submitted that section concerns “Pharmaceutical services”. I would also note that the history of that section indicates that section was enacted in 1988, and then subsequently amended on multiple occasions, with the last amendment coming in 2013. Specifically, the history section of that rule memorializes that the section was: Repealed and added 405.17 on 8/11/88; amended 405.17 on 1/01/89; amended 405.17(a) opening paragraph on 12/31/13; amended 405.17(a)(2)(i) on 12/31/13; amended 405.17(a)(9)(i) on 12/31/13; amended 405.17(b) opening paragraph on 12/31/13; amended 405.17(b)(1) on 12/31/13. 21. The plaintiff has not specifically stated which section he relies upon. Additionally, it is respectfully submitted that all preceding arguments regarding plaintiff’s failure to provide an excuse for his delay in seeking the relief requested herein also apply equally to any argument grounded in 10 NYCRR 405.17. 22. I would also join in those arguments of Attorney Pforr that plaintiff’s reliance upon Adams v. Jamaica Hospital, 258 A.D.2d 604, (2d Dept. 1999); Morales v. County of Nassau, 94 N.Y.2d 218 (1999); Murray v. City of New York, 43 N.Y.2d 400 (1977); Gonfiantini v. Zino, 184 9 of 12 FILED: SUFFOLK COUNTY CLERK 11/14/2022 03:15 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 11/14/2022 A.D.2d 360 (1stDept. 1992); Dittmar Explosives v. A.E. Ottaviano, Inc., 20 N.Y.2d 498, 503 (1967); and Bryant v. Broadcast Music, 60 A.D.3d 799 (2d Dept., 1999), is misplaced as those cases are inapposite. 23. I have read and reviewed the affirmation in opposition to the instant motion of Mark Khavkin, Esq., counsel for Dr. Patel, and would join in the arguments set forth within his affirmation. Specifically, on behalf of SOUTHAMPTON HOSPITAL, I would join in the argument that the doctrine of the “law of the case” should govern herein, and that as per the ruling of the Hon. Joseph A. Santorelli, that these issues have already been litigated and the plaintiff should not be relitigated. See, Tischler v. Key One Corp., 67 A.D.2d 886 (1st Dept. 1979); Glynwill Investments, N.V. v. Shearson Lehman Hutton, Inc., 216 A.D.2d 78 (1st Dept. 1995); Carmona v. Mathisson, 92 A.D.3d 492, 493 (1st Dept. 2012). 24. I would also note that while I agree with Attorney Khavkin, that if there where there has been a change in circumstances following the filing of the Note of Issue such as when an amended bill of particular is served, that vacating the Note of Issue to conduct appropriate discovery is warranted. Citing, Steifman v. Mikhail Khenin, Ultisave, LLC, 2010 WL 5698454 (Supreme Court, Westchester County, June 9, 2010, Justice Scheinkman, Index No. 08271-2007). However, I would respectfully submit that the prospect of continued discovery on events which occurred in October of 2006, underscores one aspect of the prejudice that the defendants herein would face if the plaintiff were granted the relief requested in the instant motion. It is beyond argument that if the Note of Issue is stricken, that we would then need to depose the plaintiff once again on issues pertaining to the new allegations of negligence. That means that we would need to question the plaintiff about specific interactions that he had more than sixteen years ago. We do not know what testimony the plaintiff would offer at any such deposition, but it is beyond 10 of 12 FILED: SUFFOLK COUNTY CLERK 11/14/2022 03:15 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 11/14/2022 argument that Mr. Downes’ ability to accurately answer such questions pertaining to these new issues would have been much better had these amendments had been made many years ago. CONCLUSION 25. For the reasons set forth in this affirmation, itis respectfully requested that this Honorable Court deny the plaintiffs request for an Order pursuant to CPLR §3025(b)&(c), allowing plaintiff to amend the various Bills of Particular in order to assert new allegations of malpractice not previously pled; to conform the pleadings to the proof; to deem the amended Bill of Particulars timely served as against all defendants; and for such other and different relief as this Court deems just, proper, and equitable. WHEREFORE, it is respectfully requested that this Honorable Court issue an Order: Denying the plaintiffs request for an Order pursuant to CPLR §3025(b)&(c), allowing plaintiff to amend the various Bills of Particular in order to assert new allegations of malpractice not previously pled; to conform the pleadings to the proof; to deem the amended Bill of Particulars timely served as against all defendants; and for such other and different relief as this Court deems just, proper, and equitable; Together with such other, further, and different relief as this Court deems just, proper, and equitable. Dated: Melville, New York November 14, 2022 ________________________________ Joseph M. Bisch 11 of 12 FILED: SUFFOLK COUNTY CLERK 11/14/2022 03:15 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 11/14/2022 CERTIFICATE OF COMPLIANCE Joseph M. Bisch, attorney for the Defendant, SOUTHAMPTON HOSPITAL, , hereby certifies that the total number of words in this Affirmation in Opposition, exclusive of caption, is 3,678. Dated: Melville, New York November 14, 2022 _______________________ JOSEPH M. BISCH 12 of 12