        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

919
CA 11-02167
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND MARTOCHE, JJ.


DAWN M. LORENZO AND FRANK D. LORENZO, AS
PARENTS AND NATURAL GUARDIANS OF HUNTER
LORENZO, PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

KENNETH R. KAHN, M.D., ET AL., DEFENDANTS,
LIANG BARTKOWIAK, M.D. AND KALEIDA HEALTH,
DOING BUSINESS AS CHILDREN’S HOSPITAL OF
BUFFALO, ALSO KNOWN AS WOMAN’S AND CHILDREN’S
HOSPITAL OF BUFFALO, ALSO KNOWN AS KALEIDA
HEALTH, INC., DEFENDANTS-APPELLANTS.
(APPEAL NO. 1.)


GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (MARK SPITLER OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

ROLAND M. CERCONE, PLLC, BUFFALO (ROLAND M. CERCONE OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (John M.
Curran, J.), entered January 19, 2011 in a medical malpractice action.
The order, inter alia, granted those parts of the motion of defendants
Liang Bartkowiak, M.D. and Kaleida Health, doing business as
Children’s Hospital of Buffalo, also known as Woman’s and Children’s
Hospital of Buffalo, also known as Kaleida Health, Inc. to dismiss
plaintiffs’ complaint against them with the exception of two claims
within the negligence causes of action.

     It is hereby ORDERED that the order so appealed from is modified
as a matter of discretion in the interest of justice by granting in
its entirety that part of the motion seeking dismissal of the
complaint with the exception of the allegation specified in the
decision of this Court in Lorenzo v Kahn (74 AD3d 1711) and as
modified the order is affirmed without costs.

     Memorandum: Plaintiff parents commenced a medical malpractice
action on their own behalf based on complications that arose during
the delivery of their child, Hunter. Plaintiff mother asserted that
she had sustained various physical injuries as a result of the
complications, while plaintiff father asserted a cause of action that
was derivative in nature. As relevant to the appeals now before us,
the Hospital defendants, i.e., defendant Kaleida Health, doing
business as Children’s Hospital of Buffalo, also known as Woman’s and
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                                                         CA 11-02167

Children’s Hospital of Buffalo, also known as Kaleida Health, Inc. and
defendant Liang Bartkowiak, M.D., a medical resident at Kaleida
Health, moved for summary judgment dismissing the complaint against
them. Supreme Court denied the motion, and on appeal we modified the
order by granting the motion in part (Lorenzo v Kahn, 74 AD3d 1711,
1711-1712).

     Before that appeal was decided, plaintiffs commenced the instant
medical malpractice action against the same defendants, this time as
parents and natural guardians of Hunter (hereafter, Hunter Lorenzo
action). Plaintiffs moved to consolidate the two actions, and
plaintiffs’ counsel asserted in support of the motion that the parties
and the attorneys were identical in both actions, and that the
“allegations stem from the same causes of action” and involve “common
questions of law and fact[].” Plaintiffs’ counsel further asserted
that the bills of particulars in both actions were “virtually
identical, especially with regard to the allegations of the negligence
against the defendants. Therefore, both cases essentially rely on the
same questions of law and facts.” Additionally, plaintiffs’ counsel
asserted that plaintiffs should “have no need to take further
depositions of the defendant parties or the nurses” because the
allegations of negligence were “virtually identical.” The court
granted the motion to consolidate in February 2009, but that decision
apparently was never reduced to an order.

     The Hospital defendants thereafter moved for leave to amend their
answers in the Hunter Lorenzo action to include the affirmative
defenses of collateral estoppel, res judicata and law of the case.
They also moved to dismiss the complaint in the Hunter Lorenzo action
against them with the exception of, in accordance with our decision in
the prior appeal (id.), the allegation that Dr. Bartkowiak was
negligent in failing to intervene when her supervisor, defendant
Kenneth R. Kahn, M.D., directed her to perform a midline episiotomy.
In opposing the motion, plaintiffs submitted an additional supplement
to the bill of particulars in that action, wherein they alleged that
the Hospital defendants were negligent “in failing to inform Dr. Kahn
that there were some possible troubling issues with the fetal
monitoring strip; failing to advise Dr. Kahn of the baby’s position,
crowning and molding; and failing to keep Dr. Kahn apprised of any
other facts over an approximate twenty-four hour period” (additional
allegations). By the order in appeal No. 1, the court granted those
parts of the motion for leave to amend the answers to include, inter
alia, the affirmative defense of collateral estoppel and for dismissal
of the complaint against the Hospital defendants with two exceptions
within the negligence causes of action, i.e., the one set forth in the
prior decision of this Court and the additional allegations. We note
that the court also granted the motion to the extent that it sought
dismissal of the derivative cause of action, and plaintiffs have not
taken a cross-appeal from that part of the order.

     Subsequently, Dr. Kahn and defendant University Gynecologists &
Obstetricians, Inc. (collectively, UGO defendants) moved to compel
plaintiffs to appear for depositions, and the Hospital defendants
cross-moved for an order striking plaintiffs’ additional supplement to
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                                                          CA 11-02167

the bill of particulars on the ground that judicial estoppel prevented
plaintiffs from adding new claims. Alternatively, they sought the
relief sought by the UGO defendants. By the order in appeal No. 2,
the court, inter alia, denied the cross motion to the extent that it
sought to strike plaintiffs’ additional supplement to the bill of
particulars.

     Addressing first the order in appeal No. 2, we conclude that the
court erred in denying the cross motion with respect to the additional
supplement to the bill of particulars. “Judicial estoppel may be
invoked to prevent a party from ‘inequitably adopting a position
directly contrary to or inconsistent with an earlier assumed position
in the same proceeding’ ” (Zanghi v Laborers Intl. Union of N. Am.,
AFL-CIO, 21 AD3d 1370, 1372), where the party had prevailed with
respect to the earlier position (see Zedner v United States, 547 US
489, 504). Here, judicial estoppel applies because the position taken
by plaintiffs in opposition to the cross motion in the Hunter Lorenzo
action is “ ‘directly contrary to or inconsistent with’ ” the earlier
position they assumed in their motion to consolidate the two actions
(Zanghi, 21 AD3d at 1372), and they prevailed with respect to that
position. Plaintiffs contend that, although there was a prior
judicial ruling in their favor on the motion to consolidate, that
ruling was never reduced to an order, and they therefore did not
prevail. We reject that contention. We also cannot agree with the
position of the dissent that plaintiffs did not prevail on their
motion because the actions have not in fact been consolidated.
Rather, judicial estoppel applies because plaintiffs prevailed on
their motion to consolidate when the motion was granted in open court
(cf. Ferreira v Wyckoff Hgts. Med. Ctr., 81 AD3d 587, 588). In our
view, an order is not necessary for the invocation of judicial
estoppel by the Hospital defendants.

     In view of our decision in appeal No. 2, we conclude in appeal
No. 1 that the Hospital defendants are entitled to the full relief
sought in that part of their motion seeking dismissal of the complaint
in the Hunter Lorenzo action against them with the exception of the
allegation that Dr. Bartkowiak was negligent in failing to intervene
when her supervisor, defendant Dr. Kenneth R. Kahn, directed her to
perform a midline episiotomy. We therefore modify the order in appeal
No. 1 accordingly.

     All concur except PERADOTTO and CARNI, JJ., who dissent and vote to
affirm in the following Memorandum: We respectfully dissent because,
in our view, the doctrine of judicial estoppel is inapplicable to this
case. We would therefore affirm the order in appeal No. 2.

     As noted by the majority, plaintiff parents commenced a medical
malpractice action seeking damages for injuries sustained by plaintiff
mother and, derivatively, by plaintiff father based upon complications
that arose during the delivery of their son, Hunter. As relevant
here, the Hospital defendants, i.e., defendant Kaleida Health, doing
business as Children’s Hospital of Buffalo, also known as Woman’s and
Children’s Hospital of Buffalo, also known as Kaleida Health, Inc. and
defendant Liang Bartkowiak, M.D., a medical resident at Kaleida
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                                                         CA 11-02167

Health, moved for summary judgment dismissing the complaint against
them. Supreme Court denied the motion, and on appeal this Court
modified the order by granting the motion in part (Lorenzo v Kahn, 74
AD3d 1711, 1711-1712 [hereafter, Dawn Lorenzo action]).

     While that appeal was pending, plaintiffs commenced this medical
malpractice action on behalf of Hunter, seeking damages for injuries
Hunter sustained as a result of defendants’ alleged negligence in
connection with his delivery (hereafter, Hunter Lorenzo action).
Plaintiffs thereafter moved to consolidate the two actions. The
record contains no papers submitted by defendants in opposition to the
motion. Although the record reflects that the court granted the
motion to consolidate in a February 2009 bench decision, it is
undisputed that no order to that effect was ever entered. Further, it
appears from the record that the two actions were not, in fact,
consolidated.

     After the issuance of this Court’s decision in the Dawn Lorenzo
action, the Hospital defendants sought leave to amend their answers in
the Hunter Lorenzo action to include the affirmative defenses of
collateral estoppel, res judicata, and law of the case. They also
moved to dismiss the complaint in the Hunter Lorenzo action against
them with the exception of the allegation that Dr. Bartkowiak was
negligent in failing to intervene when her supervisor, defendant
Kenneth R. Kahn, M.D., directed her to perform a midline episiotomy –
the sole surviving allegation against the Hospital defendants in the
Dawn Lorenzo action in accordance with this Court’s decision (id. at
1712-1713). Plaintiffs opposed the motion and submitted an
“additional supplement” to the bill of particulars in the Hunter
Lorenzo action (hereafter, supplemental bill of particulars). In
their supplemental bill of particulars, plaintiffs allege that the
Hospital defendants were negligent in, inter alia, failing to inform
Dr. Kahn “that there were some possible troubling issues with the
fetal monitoring strips”; failing to advise Dr. Kahn of the baby’s
“position, crowning, and molding”; and failing to keep Dr. Kahn
“apprised of any other facts over an approximate twenty-four hour
period” (hereafter, new allegations).

     In appeal No. 1, the Hospital defendants appeal from an order
granting those parts of their motion for leave to amend their answers
to include, inter alia, the affirmative defense of collateral estoppel
and for dismissal of the complaint against them with two exceptions
within the negligence causes of action, i.e., the one set forth in the
prior decision of this Court and the new allegations. Dr. Kahn and
defendant University Gynecologists & Obstetricians, Inc. subsequently
moved to compel plaintiffs to appear for depositions, and the Hospital
defendants cross-moved for, inter alia, an order striking plaintiffs’
supplemental bill of particulars on the basis of judicial estoppel.
In appeal No. 2, the Hospital defendants appeal from an order that,
inter alia, denied the cross motion to the extent that it sought to
strike plaintiffs’ supplemental bill of particulars.

     With respect to appeal No. 2, we disagree with the majority that
the court erred in denying that part of the cross motion seeking to
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                                                         CA 11-02167

strike the supplemental bill of particulars on the ground of judicial
estoppel. The doctrine of judicial estoppel provides that, “ ‘[w]here
a party assumes a certain position in a legal proceeding, and succeeds
in maintaining that position, he [or she] may not thereafter, simply
because his [or her] interests have changed, assume a contrary
position, especially if it be to the prejudice of the party who has
acquiesced in the position formerly taken by him [or her]’ ” (New
Hampshire v Maine, 532 US 742, 749, reh denied 533 US 968 [emphasis
added], quoting Davis v Wakelee, 156 US 680, 689; see Popadyn v Clark
Constr. & Prop. Maintenance Servs., Inc., 49 AD3d 1335, 1336). Thus,
“if a party assumes a position in one legal proceeding and prevails in
maintaining that position, that party will not be permitted to assume
a contrary position in another proceeding simply because the party’s
interests have changed” (Kilcer v Niagara Mohawk Power Corp., 86 AD3d
682, 683 [emphasis added]).

     The underlying purpose of judicial estoppel is to protect the
integrity of the judicial process (see New Hampshire, 532 US at 749-
750). Consequently, a key factor in determining the applicability of
the doctrine of judicial estoppel is whether the party against whom
the doctrine is asserted “has succeeded in persuading a court to
accept that party’s earlier position, so that judicial acceptance of
an inconsistent position in a later proceeding would create the
perception that either the first or the second court was misled . . .
Absent success in a prior proceeding, a party’s later inconsistent
position introduces no risk of inconsistent court determinations . . .
, and thus poses little threat to judicial integrity” (id. at 750-751
[internal quotation marks omitted]; see Kilcer, 86 AD3d at 226 [“A
litigant should not be permitted to lead a tribunal to find a fact one
way and then attempt to convince a court in a different proceeding
that the same fact should be found otherwise; the litigant should be
bound by the prior stance that he or she clearly asserted”]).

     Here, we conclude that the doctrine of judicial estoppel is
inapplicable because plaintiffs did not “prevail[]” on their motion to
consolidate (Kilcer, 86 AD3d at 683; see Pierre v Mary Manning Walsh
Nursing Home Co., Inc., 93 AD3d 541, 542; Kvest LLC v Cohen, 86 AD3d
481, 482; Ferreira v Wyckoff Hgts. Med. Ctr., 81 AD3d 587, 588).
Although the justice to whom the case had been previously assigned
apparently granted plaintiffs’ consolidation motion from the bench,
that decision was never reduced to an order and, more importantly, the
record establishes that the two actions have not, in fact, been
consolidated. Thus, it cannot be said that plaintiffs “ ‘succeeded in
persuading [the] court to accept [their] earlier position’ ” (Zedner v
United States, 547 US 489, 504).

     In any event, we disagree with the majority that the position
taken by plaintiffs in the Hunter Lorenzo action is “ ‘clearly
inconsistent’ ” with (New Hampshire, 532 US at 750) or “directly
contrary” to (Tobias v Liberty Mut. Fire Ins. Co., 78 AD3d 928, 929)
the position they assumed in their motion to consolidate the two
actions. In his affirmation in support of consolidation, plaintiffs’
counsel stated that the two actions were “virtually identical” and
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                                                         CA 11-02167

“essentially rely on the same questions of law and facts,” and that
“the allegations of negligence against the defendants are virtually
identical” (emphases added). Plaintiffs’ counsel never asserted,
however, that there were no claims that were unique to the Hunter
Lorenzo action and, indeed, he averred that plaintiffs might offer
additional expert opinions relative to the infant’s injuries. In our
view, plaintiffs’ attorney was simply arguing that the two actions
involved “common question[s] of law or fact” and should thus be
consolidated for the convenience of the parties and the court (CPLR
602 [a]). He was not admitting that, on the merits, the two cases
were indistinguishable in fact and/or law. Thus, the assertion of new
allegations in the supplemental bill of particulars was not “ ‘clearly
inconsistent’ ” with (New Hampshire, 532 US at 750) or “directly
contrary” to (Tobias, 78 AD3d at 929) the position taken by plaintiffs
in support of their consolidation motion (see generally Private
Capital Group, LLC v Hosseinipour, 86 AD3d 554, 556), and the court
did not err in denying defendants’ cross motion to strike the
supplemental bill of particulars.

     We have examined the Hospital defendants’ contention in appeal
No. 1 and conclude that it is without merit. We would therefore
affirm both orders.




Entered:   November 16, 2012                    Frances E. Cafarell
                                                Clerk of the Court
