Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application: Papers Numbered Notice of Motion and Affirmation/Affidavit annexed 1-2 Upon the foregoing cited papers, the decision on Defendant’s Motion is as follows: Plaintiff, PATRICIA PIELAK (hereinafter “Plaintiff”) instituted this action against Defendants JOHN SHIAU (hereinafter “Dr. Shiau,”) HEALTH CARE ASSOC IN MED (hereinafter “Health Care Assoc.”), ZIMMER BIOMET (hereinafter “Biomet”), and RICHMOND UNIVERSITY MEDICAL CENTER (hereinafter “RUMC” and collectively “Defendants”) on May 26, 2021, by filing a Summons with Notice in the Supreme Court, Richmond County. By order of the Hon. Judith N. McMahon, dated September 24, 2021, this matter was transferred to the Civil Court, Richmond County pursuant to CPLR 325(d). On January 26, 2022, counsel for RUMC filed a Demand for Complaint upon Plaintiff, who, appearing pro se, filed a Complaint on March 10, 2022. The Complaint alleges medical malpractice and breach of contract relating to cervical spinal surgery that was performed on October 24, 2018. The parties entered into a stipulation extending Defendants’ time to answer or otherwise respond to Plaintiff’s Complaint. On April 15, 2022, defendants Dr. Shiau and Health Care Assoc. (hereinafter the “moving Defendants”) filed the instant motion to dismiss the matter. The parties appeared before the undersigned on June 27, 2022, wherein Plaintiff notified the Court she was not able to file opposition to the motion due to a recent diagnosis of COVID-19. The Court granted a final adjournment request and ordered Plaintiff to file any opposition to the motion on or before July 25, 2022. Plaintiff did not file any opposition and did not appear on the return date of the motion, August 29, 2022. Following argument on the motion by counsel, the motion was marked submitted. The moving Defendants seek dismissal of the complaint pursuant to CPLR 3211(a)(5) and CPLR 214-a, claiming the action is barred by the statute of limitations and CPLR 3211(a) (7) to the extent the Complaint fails to assert a cause of action against Health Care Assoc. The moving Defendants also seek dismissal of Plaintiff’s breach of contract claim as it is duplicative of the malpractice allegation. Lastly, the moving Defendant seeks dismissal of all claims asserted by Stephanie Pielak VanTeyens, who was added as a plaintiff by virtue of the Complaint. Claims Asserted by Stephanie Pielak VanTeyens The sole plaintiff named in the Summons with Notice is Patricia Pielak. When the Complaint was filed, the Complaint also listed the Plaintiff’s daughter, Stephanie Pielak VanTeyens, as an additional plaintiff. CPLR 1003 provides that parties may be added at any stage of litigation by leave of court. However, the Plaintiff never served an amended summons nor moved to amend the summons, as required by CPLR 305 and 3025 respectively. Plaintiff’s failure to obtain court approval constitutes a “jurisdictional defect” and, any claims that Stephanie Pielak VanTeyens may have against the Defendants are not properly before this Court (Pub. Adm’r of Kings County v. McBride, 15 AD3d 558, 559 [2d Dept 2005]). Therefore, any claims asserted by Stephanie Pielak VanTeyens are dismissed. Breach of Contract Allegations Paragraph 14 of the Complaint states “By reason of the facts and circumstances stated above, defendants have breached their contracts.” It is well settled that “where a cause of action lies in medical malpractice, a breach of contract action is legally redundant, and may not be pursued unless plaintiff can prove that, within the context of medical treatment, defendant expressed a specific promise to effect a cure or to accomplish some definite result” (Scalisi v. New York Univ. Med. Ctr., 24 AD3d 145, 147 [1st Dept 2005]). Here, Plaintiff has made no allegation of any specific promise made by the Defendants, it is merely a restatement of Plaintiff’s malpractice allegations. Accordingly, the breach of contract allegations must be dismissed. Dismissal Under CPLR 3211(a)(7) When a court is considering a motion to dismiss, the complaint should be liberally construed in the light most favorable to the plaintiff, and all allegations must be accepted as true (Leon v. Martinez, 84 NY2d 83, 87 [1994]). Initially, the sole criterion is whether the pleading states a cause of action, and if, from the pleading’s four corners, the court discerns factual allegations that, when taken together, manifest any cause of action cognizable at law, the motion will fail (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). The question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one (Steve Elliot, LLC v. Teplitsky, 59 AD3d 523 [2d Dept 2009], citing Guggenheimer v. Ginzburg). In this case, no cause of action has been asserted against Health Care Assoc. in the Complaint. A review of the Complaint finds that Plaintiff has not alleged any allegations of malpractice or suffered damages as a result of Health Care Assoc. Therefore, dismissal is appropriate as to this defendant. Dismissal Under CPLR 3211(a)(5) Pursuant to CPLR 3211(a)(5), a party may move to dismiss a complaint on the grounds that “the cause of action may not be maintained because of…statute of limitations…” An action for medical malpractice must be commenced “within two years and six months of the act, omission or failure complained of” (CPLR 214-a). A defendant who seeks dismissal of a complaint “pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired” (Texeria v. BAB Nuclear Radiology, P.C., 43 AD3d 403, 405 [2d Dept 2007]). According to the Complaint, Plaintiff claims the alleged date of medical malpractice occurred on October 24, 2018, the date of the cervical spinal surgery performed by Dr. Shiau at RUMC.1 The moving Defendants argue that any action for medical malpractice on October 24, 2018, is barred by the statute of limitations as of April 24, 2021. Plaintiff’s Summons with Notice was filed one month and two days after that date, May 26, 2021. The moving Defendants argue that the statute of limitations expired on April 24, 2021, two and a half years after the alleged date of medical malpractice. However, counsel did not address the unprecedented tolling of all actions by then-Governor Andrew M. Cuomo due to the COVID-19 pandemic. During argument, counsel stated any argument relating to tolling would have to be raised by the Plaintiff; and therefore, should not be considered by the Court in rendering its decision. The Court sees otherwise. On March 20, 2020, Governor Cuomo issued Executive Order 202.8 which held In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing or service of any legal action, notice, motion or other process or proceeding, as prescribed by the procedural laws of the state, including, but not limited to, the…civil practice law and rules…, or by any other statute, local law, ordinance, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020. Subsequent to the issuance of this executive order, Governor Cuomo issued a series of executive orders to extend the tolling period through November 3, 2020 (See Brash v. Richards, 195 AD3d 582 [2d Dept, 2021]; Executive Order Nos. 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, 202.67, and 202.72). The latest executive order issued by Governor Cuomo concluded on November 3, 2020. Once the moving parties establishe, prima facie, that the time in which to commence the action is expired, it is generally Plaintiff’s burden to raise a question as to whether the statute of limitations is tolled, or is otherwise inapplicable (See RTT Holdings, LLC v. Nacht, 206 AD3d 834, 835 [2d Dept 2022]). Such would be the scenario in a case where the plaintiff was an infant or otherwise incapacitated, or a stipulation was entered into between the parties to toll the statute of limitations (See CPLR 208). In those circumstances, the court is not privy to the existence or applicability of a tolling provision unless it is raised by the plaintiff. However, the tolling of the statute of limitations during the COVID-19 pandemic was imposed by the governor and alluded to in several administrative orders of the Chief Administrative Judge.2 For this reason, the Court finds that the tolling period does not need to be raised by the Plaintiff in this matter. The Court draws the analogy to the hypothetical circumstance when a deadline falls on a weekend or holiday. If the opposing party alleges that the submission was late, the Court does not have to wait until the filing party argues that the deadline fell on a weekend or holiday, the Court can take judicial notice of that fact on its own. Using the same rationale, the Court takes notice of the tolling provisions contained in the Governor’s various executive orders. In this matter, the statute of limitations was tolled from March 20, 2020, until November 4, 2020, extending the Plaintiffs time to initiate the action until December 10, 2021. The moving Defendant’s papers fail to argue otherwise. Therefore, Plaintiffs timely filed the instant action by a Summons with Notice on May 26, 2021. Accordingly, it is hereby ORDERED that the motion to dismiss all claims made by STEPHANIE PIELAK VANTEYENS, brought by defendants JOHN SHIAU and HEALTH CARE ASSOCIATES IN MEDICINE is GRANTED; and it is further ORDERED that the motion to dismiss a cause of action for breach of contract brought by defendants JOHN SHIAU and HEALTH CARE ASSOCIATES IN MEDICINE is GRANTED; and it is further ORDERED that the motion to dismiss the complaint pursuant to CPLR 3211(a)(7) brought by defendant HEALTH CARE ASSOCIATES IN MEDICINE is GRANTED; and it is further ORDERED that the motion to dismiss the complaint pursuant to CPLR 3211(a)(5) brought by defendant JOHN SHIAU is DENIED; and it is further ORDERED that the remaining parties are directed to appear IN PERSON for a preliminary conference on September 19, 2022, at 11:00 a.m., at the Civil Courthouse located at 927 Castleton Avenue. If the Plaintiff fails to appear in person on that date and time, the Plaintiff will be held in default and the matter may be dismissed. The foregoing constitutes the Decision and Order of the Court. Dated: September 7, 2022
