Wilber v Borgen
Categories
Attorneys and Parties
Brief Summary
Medical malpractice and lack of informed consent claims arising from a coronary angiography performed at Maimonides Medical Center, along with procedural issues concerning dismissal under CPLR 3211(a)(7) [rule allowing dismissal for failure to state a cause of action], default judgment, personal jurisdiction, and whether a named defendant is a suable legal entity.
The Supreme Court, Kings County, denied the plaintiff's motion for leave to enter a default judgment against Saurabh S. Thakar and Maimonides Nursing Staff, granted those defendants' cross-motion to dismiss, and granted Elliot J. Borgen and Maimonides Medical Center's motion under CPLR 3211(a)(7) to dismiss the amended complaint, resulting in dismissal of the entire action.
The Appellate Division reinstated the causes of action for medical malpractice and lack of informed consent against Elliot J. Borgen and Maimonides Medical Center, modified the August 31, 2020 order accordingly, and remitted for severance and further proceedings on those claims.
The appellate court held that the trial court improperly required the plaintiff to submit a physician's affidavit to defeat a CPLR 3211(a)(7) motion. On such a motion, the complaint must be liberally construed, the facts accepted as true, and the burden does not shift to the plaintiff unless the motion is converted to summary judgment under CPLR 3211(c) [conversion of a dismissal motion to summary judgment]. The amended complaint sufficiently pleaded medical malpractice and lack of informed consent against Borgen and the hospital. However, dismissal as to Thakar and Maimonides Nursing Staff was proper because service on Thakar was defective under CPLR 308(2), (3) [methods of personal service], and Maimonides Nursing Staff was not a legal entity amenable to suit.
Background
In April 2017, Rhonda Wilber was admitted to Maimonides Medical Center and underwent a coronary angiography performed by Elliot J. Borgen. In April 2019, she sued for, among other things, medical malpractice and lack of informed consent. Borgen and the hospital moved to dismiss under CPLR 3211(a)(7) [rule allowing dismissal for failure to state a cause of action]. Wilber also sought a default judgment against Saurabh S. Thakar and Maimonides Nursing Staff, while those defendants cross-moved to dismiss for lack of personal jurisdiction and other grounds.
Lower Court Decision
The Supreme Court denied Wilber's request for a default judgment against Thakar and Maimonides Nursing Staff and granted their cross-motion to dismiss. It also granted Borgen and Maimonides Medical Center's CPLR 3211(a)(7) motion and dismissed the amended complaint in full. As to Borgen and the hospital, the dismissal was based on Wilber's failure to comply with an earlier directive to provide an affidavit from a physician attesting to the merits of her claims.
Appellate Division Reversal
The Appellate Division held that the trial court erred in dismissing the medical malpractice and lack of informed consent claims against Borgen and Maimonides Medical Center. A plaintiff opposing a CPLR 3211(a)(7) motion is not required to make an evidentiary showing or submit an expert affidavit unless the motion is converted to summary judgment. Accepting the amended complaint's allegations as true and giving the plaintiff every favorable inference, the pleading stated cognizable claims for medical malpractice and lack of informed consent. The court therefore reinstated those claims and remitted the matter for further proceedings. The appellate court otherwise affirmed the dismissal of claims against Thakar and Maimonides Nursing Staff because personal jurisdiction over Thakar was not obtained due to improper service under CPLR 308(2), (3), and because Maimonides Nursing Staff was not a suable entity.
Legal Significance
The decision reinforces New York pleading standards on a motion under CPLR 3211(a)(7): courts must focus on whether the pleaded facts fit within a cognizable legal theory, not on whether the plaintiff has already produced evidentiary proof. It specifically confirms that, absent conversion to summary judgment under CPLR 3211(c), a medical malpractice plaintiff cannot be compelled to submit an expert affidavit merely to survive a pleading-stage dismissal motion. The case also illustrates that defective service defeats personal jurisdiction and that a nonentity cannot be sued.
At the pleading stage, a medical malpractice complaint that adequately alleges departures from accepted practice and lack of informed consent should not be dismissed simply because the plaintiff did not submit an expert affidavit. But claims will still be dismissed where service is improper or the named defendant is not a legal entity.