BOSSIO v. FIORILLO, N.Y. App. Div., Judgment, Law, casemine.com

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Smart Summary

Factual and Procedural Background

Mary Bossio visited the offices of Drs. Frances P. Fiorillo and Elliott Robbins for a mammogram examination. The plaintiffs alleged that the defendants failed to inform Ms. Bossio or her referring physician of a three-millimeter breast nodule detected during the exam. Consequently, Ms. Bossio did not pursue further medical treatment until 26 months later, at which time the nodule had grown to a cancerous nine-millimeter mass requiring surgical removal. The complaint further claims that the delay caused emotional harm and fear of cancer. Procedurally, Dr. Fiorillo moved to renew and reargue her prior motion for summary judgment based on what she described as new evidence. The Supreme Court denied this motion, and the appeal arises from that denial.

Legal Issues Presented

Whether Dr. Fiorillo had a doctor-patient relationship with the plaintiff or a quasi doctor-patient relationship that could give rise to liability.
Whether the motion to renew and reargue the prior motion for summary judgment was properly based on new evidence unavailable at the time of the original motion.
Whether the denial of a motion to renew and reargue a summary judgment motion is appealable.

Arguments of the Parties

Appellant's Arguments (Dr. Fiorillo)

Dr. Fiorillo asserted that she did not have a doctor-patient relationship with Ms. Bossio.
She claimed she was not a partner with the treating physician.
Even assuming a quasi doctor-patient relationship existed, the plaintiffs failed to demonstrate any proof of her liability.
The motion to renew and reargue was supported by new evidence, including deposition testimony of Dr. Robbins and an affidavit from her medical expert.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mgrditchian v Donato, 141 A.D.2d 513	Renewal motions must be based on new facts unavailable at the time of the original motion.	The court found Dr. Fiorillo's motion was not based on new facts unavailable previously, thus denying the renewal.
Matter of Bosco, 141 A.D.2d 639	Same principle regarding renewal motions requiring new evidence.	Supported the court's conclusion that the motion to renew was improperly based on evidence available earlier.
Grumman Aerospace Corp. v Rice, 199 A.D.2d 365	Affidavits or evidence offered on renewal must be accompanied by valid excuse for not submitting earlier.	The court found no valid excuse for the late submission of the medical expert's affidavit, weighing against renewal.

Court's Reasoning and Analysis

The court analyzed Dr. Fiorillo's motion to renew and reargue her prior summary judgment motion and determined it was not based on new facts unavailable at the time of the original motion. The affidavit of the medical expert submitted with the renewal motion lacked a valid excuse for its late submission. Consequently, the court treated the motion as a mere motion to reargue, which is not appealable. The court thus dismissed the appeal for lack of an appealable order, emphasizing procedural rules governing motions for renewal and reargument and the necessity of presenting new evidence or facts that were previously unavailable.

Holding and Implications

The court’s final decision was to DISMISS THE APPEAL without costs or disbursements. The direct effect is that the Supreme Court’s denial of Dr. Fiorillo’s motion to renew and reargue stands, and no further appellate review on this procedural motion will occur. No new legal precedent was established by this decision.

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MARY BOSSIO et al., Respondents, v. FRANCES P. FIORILLO et al., Appellants, and ELLIOTT ROBBINS et al., Respondents.

Ordered that the appeal is dismissed, without costs or disbursements.

The plaintiff Mary Bossio visited the offices of Drs. Frances P. Fiorillo and Elliott Robbins to submit to a mammogram examination. The plaintiffs contend that the defendants failed to advise Ms. Bossio or her referring physician of a three-millimeter breast nodule. As a result, Ms. Bossio sought no further medical treatment until 26 months later when the mass had grown to a cancerous nine-millimeter nodule and had to be surgically removed. The remaining contention in her complaint is that the ensuing 26-month delay before further evaluation caused her emotional harm and fear of cancer.

The defendant Dr. Fiorillo moved to "renew and reargue" her prior motion for summary judgment claiming that "new evidence" consisting of the deposition testimony of Dr. Robbins and the affidavit of her medical expert establish that she did not have a doctor-patient relationship with the plaintiff, she was not a partner with the treating physician, and that even assuming the existence of a "quasi doctor-patient relationship," the plaintiffs failed to set forth any proof that she may be liable. The Supreme Court denied the motion.

Dr. Fiorillo's motion, characterized as one for renewal and reargument of her prior motion for summary judgment, was not based upon new facts which were unavailable at the time she submitted her original motion for summary judgment (see, e.g., Mgrditchian v Donato, 141 A.D.2d 513; Matter of Bosco, 141 A.D.2d 639). In addition, Dr. Fiorillo has failed to offer a valid excuse as to why the affidavit of her medical expert, offered upon her motion to "renew and reargue", was not submitted with her original motion for summary judgment (see, Grumman Aerospace Corp. v Rice, 199 A.D.2d 365). Therefore, her motion to "renew and reargue" is really a motion to reargue, the denial of which is not appealable. Thompson, J.P., Altman, Krausman and Goldstein, JJ., concur.

BOSSIO v. FIORILLO