Partners Aryeh Klonsky and Gregory Cascino obtained a discontinuance in Supreme Court, Kings County on behalf of our client who was then the Director of Rehabilitation Medicine at a NY State run hospital. This case involved the death of a then 69-year-old male at the hospital who had suffered a loss of consciousness and cardiac arrest while admitted to the in-patient rehabilitation medicine service. Plaintiff alleged that our client failed to appreciate early signs of respiratory failure, including a drop in the decedent’s oxygen saturation levels with simultaneous complaints of shortness of breath and chest pain in the days prior to the code. It was further alleged that our client should have personally examined the patient, obtained cardiology and pulmonology consults, and should have ordered a blood transfusion to address low HGB and RBC levels.
The Court denied our summary judgment motion. We perfected our appeal of the summary judgment decision, and plaintiff submitted a respondent brief. While waiting for a decision from the Appellate Division, Second Department, we learned that plaintiff had finalized a settlement with the State of New York in a companion action in the Court of Claims. Plaintiff's counsel insisted on continuing his case against our client in New York Supreme Court, Kings County. Prior to trial, we successfully obtained copies of the settlement agreement filed in the Court of Claims, including a copy of the General Release signed by plaintiff and plaintiff's counsel. With an appeal pending, and a trial date looming, we prepared a motion to dismiss arguing that the General Release incidentally also provided for the Release of all employees of the State of New York and the NY State run hospital. We provided documentary evidence that our client was an employee of the hospital at the time he treated the decedent, and therefore, we argued that the Release should apply to him as well. Premised on the strength of the arguments raised in our motion to dismiss, plaintiff's counsel ultimately agreed to voluntarily discontinue all claims against our client prior to oral argument of the motion to dismiss.
Our aggressive approach to motion practice positioned us to obtain a voluntary discontinuance for our client thereby avoiding the costs and risks of taking the case to verdict in Kings County.