Preview
FILED: NEW YORK COUNTY CLERK 11/03/2022 02:22 PM INDEX NO. 151662/2018
NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 11/03/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
ANISTO ALVES,
Index No.: 15166212018
Plaintiff,
-against- AFFIRMATION
IN SUPPORT
PARK AVENUE OPERATING CO., LLC dlbla PARK
AVENUE EXTENDED CARE FACILITY, SOUTH
NASSAU COMMUNITIES HOSPITAL, "JOHN DOE
and/or JANE DOE" as further described in the annexed
complaint, BRIAN F. CURRAN, AS ADMINISTRATOR
OF THE ESTATE OF HILLARY JOHN HURTADO,
M.D., SHIPHALI ROHATGI, M.D., ARUN ARORA,
M.D., SURESH KUMAR NAHATA, M.D., RAJESH
ROHATGI, M.D., SANDEEP GUPTA, M.D., MIHAI
D. DIMANCESCU, M.D., JAMES A. GERMANO,II,
M.D., IVAN MIKOLAENKO, M.D., HARAMANDEEP
SINGH, M.D., ANNE M. GLASER, M.D.,
Defendants.
X
ALEX M. DIGIOVANNA, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, affirms the following to be true under the penalties of perjury:
1. I am an associate of CATALANO GALLARDO & PETROPOULOS, LLP,
attorneys for defendant ANNE M. GLASER, M.D. (hereinafter referred to as "Dr. Glaser"), and
as such I am fully familiar with the facts and circumstances involved herein.
2. I make this affirmation in support of Dr. Glaser's motion seeking an Order
pursuant to CPLR $$ 503, 510, and 511 changing the venue of this action and the place of trial
from the Supreme Court, New York County to the Supreme Court, Nassau County because the
county designated by plaintiff is not proper.
3. New York County is not a proper venue for this action, because plaintiff
designated venue in New York County on the mistaken belief that MOUNT SINAI HEALTH
SYSTEM, INC. was a proper party to this action. As MOUNT SINAI HEALTH SYSTEM, INC.
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is no longer a pary to this action, pursuant to a Stipulation of Discontinuance executed by
plaintiff, there is no longer a nexus between plaintiff s claims and New York County.
PROCEDURAL HISTORY
4. Plaintiff, Anisto Alves, commenced this action via filing of a Summons and
Complaint on February 23, 2018. See NYSCEF Doc. Nos. l-2. This is an action sounding in
medical malpractice. Id.
5. The Summons and Complaint initially named PARK AVENUE OPERATING
CO., LLC, SOUTH NASSAU COMMTJNITIES HOSPITAL, and MOI.INT SINAI HEALTH
SYSTEM, INC. as the only named defendants. Id. Additionally, plaintifls address was listed as
130 East Market Street, Long Beach, New York 11561; such address is located in Nassau
County. /d.
6. Plaintiff filed a Supplemental Summons and Amended Complaint on Jlurlre 22,
2018, naming, among others, the moving defendant, Dr. Glaser. See NYSCEF Doc. Nos. 13-15.
7. A pre-answer motion to dismiss was filed by MOUNT SINAI HEALTH
SYSTEM, INC. on July 20, 2018, for failure to state a cause of action. See NYSCEF Doc. Nos.
5I-54. The basis for such motion was that MOLINT SINAI HEALTH SYSTEM, INC. did not
own, operate, manage, supervise, or employ medical providers at SOUTH NASSAU
COMMUNITIES HOSPITAL who rendered medical treatment or care, and further, it established
a lack of a relationship between it and any of the other named defendants. /d.
8. An automatic stay of this action was initiated pursuant to the death of defendant,
HILLARY JOHN HURTADO, M.D.See NYSCEF Doc. No. 55.
9. On July 26,2018, an Answer was filed on behalf of Dr. Glaser. See NYSCEF
Doc. No. 59.
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10. Plaintiff s counsel executed a Stipulation of Discontinuance for MOUNT SINAI
HEALTH SYSTEM, [NC., on November 26,2018. See NYSCEF Doc. No. 76. This effectively
severed any ties to New York County as a proper venue. In fact, discussions on the very topic of
changing venue from New York County to Nassau County were held during conferences with
the Court, specifically on April 2,2019, and June 1I,20t9. The Court indicated to plaintiffs
counsel that if motions had to be made regarding a change in venue, and there was no substantive
opposition, sanctions may be imposed.
11. On August 4, 2022, counsel for plaintiff filed a motion to vacate the stay, and
substitute Brian F. Curran, Public Administrator for Nassau County in place of deceased
defendant, Dr. Hurtado. See NYSCEF Doc. Nos. 85-95.
12. On September 29,2022, the Court granted the above-referenced motion to vacate the
stay, and substituted Brian F. Curran as Public Administrator of the Estate of Dr. Hurtado. See
NYSCEF Doc. No. 97.
13. On October 4,2022, the undersigned served a Demand for Change of Venue. See
NYSCEF Doc. No. 99.
14. Thus far, plaintiff s counsel has not responded to the moving defendant's Demand
for Change of Venue, nor has plaintiffs counsel contacted the undersigned regarding such
demand.
ARGUMENT
15. According to the pleadings, venue was based upon the residence of MOUNT
SINAI HEALTH SYSTEM, [NC., an entity that is no longer aparty to this case, pursuant to the
executed Stipulation of Discontinuance discussed above. See NYSCEF Doc. Nos. 1-2, l3-I5,76.
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16. All defendants, except for MIHAI D. DIMANCESCU, M.D., who is located in
Suffolk County, and the moving defendant, who is located in California, maintain a Nassau
County residence, and further, the care and treatment at issue was performed in Nassau County.
17. According to CPLR $ 503(a), "the place of trial shall be in the county in which
one of the parties resided when it was commenced; the county in which a substantial part of the
events or omissions giving rise to the claim occurred; or, if none of the parties reside in the state,
in any county designated by the plaintiff' except where otherwise provided by law. However,
CPLR $ 510 provides that the Court may change the place of trial when "the county designated
for that purpose is not a proper county," or "the convenience of material witnesses and the ends
ofjustice will be promoted by the change."
18. Further, this motion is timely in that the moving defendant served a written
demand for a change of venue on October 4,2022, and it has been at least fifteen (15) days since
with no response from the plaintiff. See CPLR $ 511(b).
19. When the basis of venue is the principal place of business of an improper party,
and the action is dismissed against such improper party, a motion to change venue should be
granted. See Clase v. Sidoti,20 A.D.3d 330,331 (lst Dep't 2005); see also Halina Yin Fong
Chow v. Long -Is, R.R., 202 A.D.2d 154,155 (1st Dep't 1994), Caplin v. Ranhofer, 167 A.D.2d
155,157 (1st Dep't 1990).
20. Here, plaintiff s designation of venue was, in fact, based on the principal place of
business of an improper party, Mount Sinai, and such improper party has been dismissed from
this action via Stipulation of Discontinuance. Like in Clase, where the improper party was
released from the action and the motion to change venue to the county in which the remaining
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parties resided was granted, Mount Sinai has been released from this action, and as such, the
venue should be changed in this action to Nassau County.
2L Courts also have the authority to change the venue of an action when "the
convenience of material witnesses and the ends of justice will be promoted by the change." See
CPLR $ 510. Such convenience can be demonstrated by the fact that the cause of action arose in
a particular county, that the majority of parties and material witnesses reside andlor work in a
particular county, and that all relevant medical and hospital records are kept in a particular
county. See Creed v. United Ho,sp., 158 L.D.2d 654,655 (2nd Dep't 1990).
22. In this present action, the plaintiff himself resides in Nassau County, almost all of
the defendants reside in Nassau County, the cause of action arose from alleged acts or
occuffences in Nassau County, and all treatment was provided, and presumably, all or most
relevant medical and hospital records are held in Nassau County.
23. Therefore, in the interest of convenience of material witnesses and to promote the
ends ofjustice, venue should be changed to Nassau County, where such venue would be proper.
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WHEREFORE, itis respectfully requested that the Court grant the moving defendant's
motion in its entirety, and for such other and further relief as this Court deems just and proper.
Dated: Jericho, New York
November 3,2022
Respectfully Submitted,
CATALANO GALLARDO
& PETROPOULOS, LLP
By:
,%z@fu
ALEX M. DIGIOVANNA, ESQ.
Attorneys for Defendant ;
ANNE M. GLASER, M.D.
100 Jericho Quadrangle - Suite 326
Jericho, New York 11753
(s16) 931-1800
File No.: 75-2088
TO: VIA NYSCEF
scoTT w. EPSTEIN, ESQ.
ANTIN ERHLICH & EPSTEIN, L.L.P.
Attorneys for Plaintiff
49 West 37th Street - 7th Floor
New York, New York 10018
(2t2) 221-s999
LORI ROSEN SEMLIES, ESQ.
WILSON ELSER MOSKOWTTZEDELMAN & DICKER
Attorneys for Defendants
Park Avenue Operating CO., LLC dlbla
Park Avenue Extended Care Facility
1 1 33 Westchester Avenue
White Plains, New York 10604
JOSEPH R. CAMMAROSANO
DOPF, P.C.
Attorney s for Defendant
South Nassau Communities Hospital
112 West 34th Street, Suite 1555
New York, New York 10120
ADAM B. KAUFMAN, ESQ.
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HEIDELL PITTONI, MURPHY & BACH, LLP
Attorneys for Defendant
JAMES A. GERMANO,II, M.D.
1050 Franklin Avenue, Suite 408
Garden City, New York 11530
THOMAS J. BENVENUTO
LAW OFFICES OF BENVENUTO & SLATTERY
Attomeys for Defendants
Shiphali Rohatgi, M.D.
Suresh Kumar Nahata, M.D.
Rajesh Rohatgi, M.D.
Sandeep Gupta M.D.
1800 Northern Blvd.
Roslyn, New York 11576
MITCHELL J. ANGEL
ANGEL & MCCARTHY PLLC
Attorney for Defendant
Arun Arora, M.D.
170 Old Country Road, Suite 503
Mineola, New York 11501
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Preview
FILED: NEW YORK COUNTY CLERK 11/03/2022 02:22 PM INDEX NO. 151662/2018 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 11/03/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X ANISTO ALVES, Index No.: 15166212018 Plaintiff, -against- AFFIRMATION IN SUPPORT PARK AVENUE OPERATING CO., LLC dlbla PARK AVENUE EXTENDED CARE FACILITY, SOUTH NASSAU COMMUNITIES HOSPITAL, "JOHN DOE and/or JANE DOE" as further described in the annexed complaint, BRIAN F. CURRAN, AS ADMINISTRATOR OF THE ESTATE OF HILLARY JOHN HURTADO, M.D., SHIPHALI ROHATGI, M.D., ARUN ARORA, M.D., SURESH KUMAR NAHATA, M.D., RAJESH ROHATGI, M.D., SANDEEP GUPTA, M.D., MIHAI D. DIMANCESCU, M.D., JAMES A. GERMANO,II, M.D., IVAN MIKOLAENKO, M.D., HARAMANDEEP SINGH, M.D., ANNE M. GLASER, M.D., Defendants. X ALEX M. DIGIOVANNA, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalties of perjury: 1. I am an associate of CATALANO GALLARDO & PETROPOULOS, LLP, attorneys for defendant ANNE M. GLASER, M.D. (hereinafter referred to as "Dr. Glaser"), and as such I am fully familiar with the facts and circumstances involved herein. 2. I make this affirmation in support of Dr. Glaser's motion seeking an Order pursuant to CPLR $$ 503, 510, and 511 changing the venue of this action and the place of trial from the Supreme Court, New York County to the Supreme Court, Nassau County because the county designated by plaintiff is not proper. 3. New York County is not a proper venue for this action, because plaintiff designated venue in New York County on the mistaken belief that MOUNT SINAI HEALTH SYSTEM, INC. was a proper party to this action. As MOUNT SINAI HEALTH SYSTEM, INC. 1 of 7 FILED: NEW YORK COUNTY CLERK 11/03/2022 02:22 PM INDEX NO. 151662/2018 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 11/03/2022 is no longer a pary to this action, pursuant to a Stipulation of Discontinuance executed by plaintiff, there is no longer a nexus between plaintiff s claims and New York County. PROCEDURAL HISTORY 4. Plaintiff, Anisto Alves, commenced this action via filing of a Summons and Complaint on February 23, 2018. See NYSCEF Doc. Nos. l-2. This is an action sounding in medical malpractice. Id. 5. The Summons and Complaint initially named PARK AVENUE OPERATING CO., LLC, SOUTH NASSAU COMMTJNITIES HOSPITAL, and MOI.INT SINAI HEALTH SYSTEM, INC. as the only named defendants. Id. Additionally, plaintifls address was listed as 130 East Market Street, Long Beach, New York 11561; such address is located in Nassau County. /d. 6. Plaintiff filed a Supplemental Summons and Amended Complaint on Jlurlre 22, 2018, naming, among others, the moving defendant, Dr. Glaser. See NYSCEF Doc. Nos. 13-15. 7. A pre-answer motion to dismiss was filed by MOUNT SINAI HEALTH SYSTEM, INC. on July 20, 2018, for failure to state a cause of action. See NYSCEF Doc. Nos. 5I-54. The basis for such motion was that MOLINT SINAI HEALTH SYSTEM, INC. did not own, operate, manage, supervise, or employ medical providers at SOUTH NASSAU COMMUNITIES HOSPITAL who rendered medical treatment or care, and further, it established a lack of a relationship between it and any of the other named defendants. /d. 8. An automatic stay of this action was initiated pursuant to the death of defendant, HILLARY JOHN HURTADO, M.D.See NYSCEF Doc. No. 55. 9. On July 26,2018, an Answer was filed on behalf of Dr. Glaser. See NYSCEF Doc. No. 59. 2 2 of 7 FILED: NEW YORK COUNTY CLERK 11/03/2022 02:22 PM INDEX NO. 151662/2018 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 11/03/2022 10. Plaintiff s counsel executed a Stipulation of Discontinuance for MOUNT SINAI HEALTH SYSTEM, [NC., on November 26,2018. See NYSCEF Doc. No. 76. This effectively severed any ties to New York County as a proper venue. In fact, discussions on the very topic of changing venue from New York County to Nassau County were held during conferences with the Court, specifically on April 2,2019, and June 1I,20t9. The Court indicated to plaintiffs counsel that if motions had to be made regarding a change in venue, and there was no substantive opposition, sanctions may be imposed. 11. On August 4, 2022, counsel for plaintiff filed a motion to vacate the stay, and substitute Brian F. Curran, Public Administrator for Nassau County in place of deceased defendant, Dr. Hurtado. See NYSCEF Doc. Nos. 85-95. 12. On September 29,2022, the Court granted the above-referenced motion to vacate the stay, and substituted Brian F. Curran as Public Administrator of the Estate of Dr. Hurtado. See NYSCEF Doc. No. 97. 13. On October 4,2022, the undersigned served a Demand for Change of Venue. See NYSCEF Doc. No. 99. 14. Thus far, plaintiff s counsel has not responded to the moving defendant's Demand for Change of Venue, nor has plaintiffs counsel contacted the undersigned regarding such demand. ARGUMENT 15. According to the pleadings, venue was based upon the residence of MOUNT SINAI HEALTH SYSTEM, [NC., an entity that is no longer aparty to this case, pursuant to the executed Stipulation of Discontinuance discussed above. See NYSCEF Doc. Nos. 1-2, l3-I5,76. J 3 of 7 FILED: NEW YORK COUNTY CLERK 11/03/2022 02:22 PM INDEX NO. 151662/2018 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 11/03/2022 16. All defendants, except for MIHAI D. DIMANCESCU, M.D., who is located in Suffolk County, and the moving defendant, who is located in California, maintain a Nassau County residence, and further, the care and treatment at issue was performed in Nassau County. 17. According to CPLR $ 503(a), "the place of trial shall be in the county in which one of the parties resided when it was commenced; the county in which a substantial part of the events or omissions giving rise to the claim occurred; or, if none of the parties reside in the state, in any county designated by the plaintiff' except where otherwise provided by law. However, CPLR $ 510 provides that the Court may change the place of trial when "the county designated for that purpose is not a proper county," or "the convenience of material witnesses and the ends ofjustice will be promoted by the change." 18. Further, this motion is timely in that the moving defendant served a written demand for a change of venue on October 4,2022, and it has been at least fifteen (15) days since with no response from the plaintiff. See CPLR $ 511(b). 19. When the basis of venue is the principal place of business of an improper party, and the action is dismissed against such improper party, a motion to change venue should be granted. See Clase v. Sidoti,20 A.D.3d 330,331 (lst Dep't 2005); see also Halina Yin Fong Chow v. Long -Is, R.R., 202 A.D.2d 154,155 (1st Dep't 1994), Caplin v. Ranhofer, 167 A.D.2d 155,157 (1st Dep't 1990). 20. Here, plaintiff s designation of venue was, in fact, based on the principal place of business of an improper party, Mount Sinai, and such improper party has been dismissed from this action via Stipulation of Discontinuance. Like in Clase, where the improper party was released from the action and the motion to change venue to the county in which the remaining 4 4 of 7 FILED: NEW YORK COUNTY CLERK 11/03/2022 02:22 PM INDEX NO. 151662/2018 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 11/03/2022 parties resided was granted, Mount Sinai has been released from this action, and as such, the venue should be changed in this action to Nassau County. 2L Courts also have the authority to change the venue of an action when "the convenience of material witnesses and the ends of justice will be promoted by the change." See CPLR $ 510. Such convenience can be demonstrated by the fact that the cause of action arose in a particular county, that the majority of parties and material witnesses reside andlor work in a particular county, and that all relevant medical and hospital records are kept in a particular county. See Creed v. United Ho,sp., 158 L.D.2d 654,655 (2nd Dep't 1990). 22. In this present action, the plaintiff himself resides in Nassau County, almost all of the defendants reside in Nassau County, the cause of action arose from alleged acts or occuffences in Nassau County, and all treatment was provided, and presumably, all or most relevant medical and hospital records are held in Nassau County. 23. Therefore, in the interest of convenience of material witnesses and to promote the ends ofjustice, venue should be changed to Nassau County, where such venue would be proper. 5 5 of 7 FILED: NEW YORK COUNTY CLERK 11/03/2022 02:22 PM INDEX NO. 151662/2018 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 11/03/2022 WHEREFORE, itis respectfully requested that the Court grant the moving defendant's motion in its entirety, and for such other and further relief as this Court deems just and proper. Dated: Jericho, New York November 3,2022 Respectfully Submitted, CATALANO GALLARDO & PETROPOULOS, LLP By: ,%z@fu ALEX M. DIGIOVANNA, ESQ. Attorneys for Defendant ; ANNE M. GLASER, M.D. 100 Jericho Quadrangle - Suite 326 Jericho, New York 11753 (s16) 931-1800 File No.: 75-2088 TO: VIA NYSCEF scoTT w. EPSTEIN, ESQ. ANTIN ERHLICH & EPSTEIN, L.L.P. Attorneys for Plaintiff 49 West 37th Street - 7th Floor New York, New York 10018 (2t2) 221-s999 LORI ROSEN SEMLIES, ESQ. WILSON ELSER MOSKOWTTZEDELMAN & DICKER Attorneys for Defendants Park Avenue Operating CO., LLC dlbla Park Avenue Extended Care Facility 1 1 33 Westchester Avenue White Plains, New York 10604 JOSEPH R. CAMMAROSANO DOPF, P.C. Attorney s for Defendant South Nassau Communities Hospital 112 West 34th Street, Suite 1555 New York, New York 10120 ADAM B. KAUFMAN, ESQ. 6 6 of 7 FILED: NEW YORK COUNTY CLERK 11/03/2022 02:22 PM INDEX NO. 151662/2018 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 11/03/2022 HEIDELL PITTONI, MURPHY & BACH, LLP Attorneys for Defendant JAMES A. GERMANO,II, M.D. 1050 Franklin Avenue, Suite 408 Garden City, New York 11530 THOMAS J. BENVENUTO LAW OFFICES OF BENVENUTO & SLATTERY Attomeys for Defendants Shiphali Rohatgi, M.D. Suresh Kumar Nahata, M.D. Rajesh Rohatgi, M.D. Sandeep Gupta M.D. 1800 Northern Blvd. Roslyn, New York 11576 MITCHELL J. ANGEL ANGEL & MCCARTHY PLLC Attorney for Defendant Arun Arora, M.D. 170 Old Country Road, Suite 503 Mineola, New York 11501 7 7 of 7