Hobbins v. Linden Ctr. for Nursing & Rehabilitation

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Hobbins v Linden Ctr. for Nursing & Rehabilitation 2025 NY Slip Op 32113(U) June 11, 2025 Supreme Court, Kings County Docket Number: Index No. 521114/18 Judge: Genine D. Edwards Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 06/12/2025 04:41 PM INDEX NO. 521114/2018 NYSCEF DOC. NO. 737 RECEIVED NYSCEF: 06/12/2025

At an IAS Tenn, Part 80 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the I Ith day of June 2025. PRES E T: HO . GE ED. EDWARD Justice. -------------------------------------------------------------------------------------x D' ANDRE HOBBIN , as Temporary Administrator of the Estate of MARTEL HOBBINS, deceased Plaintiff, DECISIO AND ORDER O REARG UMENTIRE EWAL -against- Index No. 521114/ 18 LINDE CENTER FOR NURSI G AND REHABILITATION' Mot. Seq. Nos. 28-29 LI DEN GARDEN NURS ING AND REHABILITATION CENTER; RUBY WESTON MANOR ; ALLURE REHABILITATION SERVICE ; 8ROOKL YN GARDENS NURSING & REHABILITATION CENTER; BISHOP HE RY 8 . HU LES EPI COPAL NUR I G HOME; THE BROOKLYN HO PITAL CENTER; OLATUNDE OSOFISA M.D.· FRANZILS SAi T-LOUI M.D. a/k/a DR. AINT-LOUI FRANTZ; ROSELLE REY , R. .; MAGDOLIN SHE OUDA P.T: ALL S Tl GO, M.D.; HAO ZHA G M.D. · DIEDRICH HOLTKAM P, M.D.; ELI A GARCES R. . ; AHMED GHANN M, P.T.; SIMONE GORDON-HARDY, R.N.; and JOHN DOE and JANE DOE, 1-10, being unknown unnamed defendants, Defendants. --- - - -- ---- - --- - - ------ -- -- - - ------- - -- - - - ---- ---- ---- -- - -- ------ - - --- -- - --- ---- - - X I

The following e-filed papers read herein: YSCEF Doc os.:

Notice of Motion , Affirmations, and Exhibits .. . .... ............... .. . 645-649; 65l-652; 695-7l⁴ Affirmations in Opposition and Exhibits ................................... . 660-664; 666-669;671 ; 673 ; 675 ; 677; 678;679-683 684-686; 687 ; 688; 715; 716; 717· 718 ; 719· 721 ; 723 ; 724; 726; 728 ; 730; 731 ; 734-735

In this action to reco er damages for medical malpractice D Andre Hobbins (the "former administrator"), as the then-acting temporary administrator of the Estate of his late father, Martel Hobbins (the ' patient"), separately moved 2 for an order:

FILED: KINGS COUNTY CLERK 06/12/2025 04:41 PM INDEX NO. 521114/2018 NYSCEF DOC. NO. 737 RECEIVED NYSCEF: 06/12/2025

Footnotes

[1] The caption herein corresponds to the amended caption set forth in the Court s Decision and Order, dated December 4 2022 (NYS EF Doc o. 369).

[2] otices of Motion, each dated May 9, 2024 (NYSCEF Doc Nos. 645 and 651 , respectively). [* 1] 1 of 6 (1) granting him leave pursuant to CPLR 570l(c) to appeal the Court's Decision and Order, dated April 8 2024 (the ' prior order ) 3 and deeming his Notice of Appeal therefrom to be duly filed (Seq. No. 28); 4 and (2) granting him leave pursuant to CPLR 2221 ( d), to reargue the underlying motions (Seq. No . 19-27) which were granted by the prior order and, upon reargument denying such motions (Seq. No. 29). The former administrator filed and served the instant motions while his Letters of Temporary Administration ( LTAs ) dated November 15 2023 remained in effect. 5 On May IO 2024, or five days before their scheduled expiration Surrogate s Court revoked the former administrator's LTAs. 6 On the same date, G. Wesley Simpson P.C. ( Attorney Simpson ) ceased representing the former admini trator in this action and in the latter s appeal from the prior order. 7 Concurrently with relieving the former administrator of his duties Surrogate' s Court directed the i suance of the LTAs to the patient's surviving spouse, Carol Hobb in (the ' uccessor administrator '). The successor administrators LTAs, which are set to expire on November 1, 2025 , were issued for the sole purposes of: (1) [a]ppearing in [thi action] as the estate's representative tor -argue [the] motions regarding dismis al of said action[] ; (2) '[r]etain[ing] negligence/malpractice counsel to prosecute said action[] if restored to the Supreme Court' s calendar'; and (3) "[r]etain[ing] appellate counsel to

[3] The prior order was first erved with notice of entry on April 10, 2024 (NYSCEF Doc o. 616).

[4] The otice of Appeal from the prior order was e-tiled on May 9 2024 (NYSCEF Doc o. 644).

[5] The former admini trator' s LTAs expired on May 15 2024 (NYSCEF Doc No. 611). 6Matter of Martel Hobbins, Decision/Order, dated May I 0, 2024, Sur Ct, Kings County Fi le Nos. 2021- 5317 / A and 2021-5317/B (NYSCEF Doc o. 712).

[7] Attorney Simpson letter to the Court, dated May 22, 2024 (NYSCEF Doc o. 672) . The former admini trator s time to perfect his appeal from the prior order was extended to January 13 , 2025 . See Hobbins v Linden Ctr. For Nursing & Rehabilitation, Docket No. 2024-08404, Entry No. 6 (Order, dated November 13, 2024). 2 [* 2] 2 of 6 appeal if said action[] [is] dismissed by the Supreme Court." 8 The successor administrator retained Lori Anne Douglass (in place of Attorney Simpson) as her counsel. While the instant motions were pending, the successor administrator's counsel filed and served her affirmation in further support of the instant motion for leave to reargue, 9 but did not seek leave to have her client substituted as the successor plaintiff in this action. Io In her supporting affirmation, the successor administrator s counsel challenged some (but not all) of the Court's findings in the prior order that: (1) the former administrator was not diligent in seeking appointment following the patient' s death on April 16 2020 during the pendency of this action- I I (2) the delay prejudiced defendants· and (3) the merits of the underlying claims were not demonstrated. 12 Like her predecessor Attorney Simpson, the successor administrator's counsel failed to address the substantive 8Matter ofMartel B. Hobbins, Certificate of Appointment of Administrator, ur Ct, Kings County, File No. 2021-5317/B (NYSCEF Doc No. 714).

[9] Affomation in Support of Motion to Reargue, dated May 1, 2025 (NYSCEF Doc o. 695). The successor administrator's counsel did not join the former administrator's other pending motion which was for leave to appeal from the prior order, thus effectively abandoning it.

[10] Wl1ile the former administrator's appeal from the prior order was pending, his counsel (Attorney Simpson), by letter, dated January 13, 2025, requested an extension oftime to perfect the appeal on the successor admini trator s behalf. See Hobbins v Linden Ctr. For ursing & Rehabilitation, Docket o. 2024-08404 ntry o. 7. To date, Attorney impson s letter request remains outstanding. Because Attorney impson lacked the authority to act following the appointment of the successor administrator and her retention of new counsel the appeal from the prior order is subject to dismissal. See Constable v. Staten Is. Univ. Hosp., 221 A.D.3 d 952, 198 N.Y.S.3d 604 (2d Dept. 2023).

[11] Patient's Death ranscript, dated July 14, 2020 (NYSCEF Doc o. 219).

[12] Prior Order, page 5-6. The prior order empha ized (at pages 6 and 7) that: "[The fonner administrator] failed to obtain any affidavit of merit in anticipation of the motions[.] [Although] knowing that a showing of merit was required under CPLR § 1021, [the former administrator] instead filed bill s of particular . The bill ofparticulars do not establish the basis of the claims against the defendants. They do not set forth generally the dates the [pati.ent] received care from the individual defendants[,] nor the alleged departures of the individual defendant. * * * [T]he prejudice to defendants who nine years after the alleged malpractice occurred till have not been apprised of what act of malpractice are being alleged against them cannot be ignored." Hobbins v Linden Ctr.for Nursing & Rehabilitation, 2024 N.Y. Slip Op. 3 l237(U) (Sup Ct, Kings County 2024) (italics added). 3 [* 3] 3 of 6 merits of the underlying claims· for example, by including a physician's affirmation atte ting to their merits. In tum, defendants interposed multiple objections to the former administrator's motions as well as to the successor administrator's joinder to the motion for leave to reargue. On May 29, 2025 the Court re erved decision on both motions. A motion for leave to reargue "shall be based upon matters of fact or law alleged ly overlooked or mi apprehended by the court in determining the prior motion but shall not include any matters of fact not offered on the prior motion.' CPLR § 2221 (d) (2). "Whil the determination to grant leave to reargue lies within the sound discretion of the court a motion for lea e to reargu is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented." Wells Fargo Bank, NA. v. Weiss, 237 A.D.3d 1003 _ N.Y .. 3d _ (2d Dept. 2025) (internal quotation marks and citation omitted). Here, the former administrators motion, although initially denominated as one for lea e to reargue evolved ov r time to encompass a request for leave to renew based on the uccessor administrator's intervening appointment in place of the former administrator and her interposition of an affirmation in further support. A motion for leave to renew hall be ba ed upon new facts not offered on the prior motion that would change the prior determination. CPLR § 2221 (e) (2). A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation. Flanagan v. Delaney 194 A.D.3d 694

[148] N.Y.S.3d 220 (2d Dept. 2021). Here both the former administrator and the successor administrator failed to show the potential merit of the underlying claims. ' The und rlying pleadings and bill of particulars do not alone establish the potential merit of the medical malpractice cause of action.' Navas v. New York Hosp. Med. Ctr. a/Queens 180 A.D.3d 796, 119 N.Y.S.3d

[543] (2d Dept. 2020). The failure of either administrator to submit an expert affirmation of merit of the underlying claims was fatal to their request for leave to reargue and renew. 4 [* 4] 4 of 6 See Linyard v. Long Is. Coll. Hosp. 234 A.D.3d 677 226 .Y.S.3d 101 (2d Dept. 2025); Mesniankina v. 302 EBA, LLC, 219 A.D.3d 1516, 196 N.Y.S.3d 769 (2d Dept. 2023); Byner v. Murray-Taylor 208 A.D.3d 1214, 174 N.Y.S.3d 751 (2d Dept. 2022); Navas v. New York Hosp. Med. Ctr. of Queens 180 A.D.3d 796, 119 .Y.S.3d 543· Green v. Maimonides Med. Ctr. 172 A.D.3d 824 101 .Y.S.3d 343 (2d Dept. 2019)· Terpis v. Regal Hgts. Rehabilitation & Health Care Ctr., Inc. , 108 A.D.3d 618, 968 N.Y.S.2d 380 (2d Dept. 2013). See also Tollinchi v. Jamaica Hosp. Med. Ctr., 216 A.D.3d 842, 189 N.Y.S.3d 240 (2d Dept. 2023); Borruso v. New York Methodist Hosp. 84 A.D.3d 1293, 924 N.Y.S.2d 152 (2d Dept. 2011); McDonnell v. Draizin 24 A.D.3d 628

[808] N.Y.S.2d 398 (2d Dept. 2005). 13 In light of the foregoing, defendants ' remaining contentions are academic and need not be addressed. Accordingly it is ORDERED that the former administrator's motion for leave to appeal is denied as abandoned and it is further ORDERED that the former administrator's motion for leave to reargue as was subsequently expanded by the succes or administrator affirmation in further upport to encompass a motion for leave for ren w is denied in its entirety in the Court 's discretion, and it is further ORDERED that the Court' s Decision and Order dated April 8, 2024, remains in full force and effect, and it is further 13 Compare Barne v. Wartburg Receiver LL , _ A.D.3d _ , _ .Y.S.3d _ , 2025 N.Y. Slip Op. 02901 (2d Dept. 2025) ("The administrator .. . demonstrated the exi tence of potentially meritorious causes of action through the submission of her expert's affidavit of merit and the pleadings."); Hemmings v. Rolling Frito-Lay Sales, LP, 220 A.D.3d 754, 197 N.Y.S .3d 561 (2d Dept. 2023) (" Here where the decedent was awarded summary judgment on the issue of liability against the defendant the action has potential merit.' )· Pelion v. New York City Health & Hasps. Corp. 175 A.D.3d 519, I 09 .Y.S.3d 426 (2d Dept. 2019) (' The plaintiffs . . . demon trated that they have potentially meritorious causes of action through their expert' affidavit of merit, the pleadings, and the te timony of Marie Petion at the General Municipal Law § 50-h hearing.")· Tokar v. Weissberg, 163 A.D.3d I 031 , 83 .Y.S.3d 76 (2d Dept.2018) ( '[The proposed administrator] sufficiently demonstrated that the action has potential merit."). 5 [* 5] 5 of 6 ORDERED that one or more of defendants ' respective counsel is directed to electronically serve a copy of this Decision and Order with notice of entry on 'the other parties' respective counsel, and to electronically file an affidavit of service thereof with the Kings County Clerk. This constitutes the Decision and Order of this Court. 6 [* 6] 6 of 6