The opinion
Wilder v Fresenius Med. Care Holdings, Inc.
2025 NY Slip Op 30354(U)
January 29, 2025
Supreme Court, New York County
Docket Number: Index No. 100841/2018
Judge: James E. d'Auguste
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: NEW YORK COUNTY CLERK 01/29/2025 02:46 PM INDEX NO. 100841/2018
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 01/29/2025
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 55
--------------------------------------X
NICHOLAS WILDER, INDEX NO. 100841/2018
Plaintiff, 11/29/2023,
MOTION DATE 12/21/2023
- V-
FRESENIUS MEDICAL CARE HOLDINGS, INC., MOTION SEQ. NO. 016 017
AVANTUS RENAL THERAPY NEW YORK, LLC, ELIOT
CHAREN, MARILOU MATEO, JUDY AMMAR, CHENILLE
APURADA, SARASWATI KASTi, NATASHA MENDOZA, DECISION+ ORDER ON
CAROLINE HERNANDEZ, RICHARD AMES, IRINA
BARASH, ANUJA SHRESTHA, MOTION
Defendants.
--------------------X
Hon. James E. d'Auguste.:
The following e-filed documents, listed by NYSCEF document number (Motion 016) 123, 124, 125, 126,
127, 128, 129, 138, 139, 140, 141, 142, 143, 144, 150, 151, 152, 153, 155, 156, 157
were read on this motion to/for DISMISS
The following e-filed documents, listed by NYSCEF document number (Motion 017) 130, 131, 132, 133,
134,135,136,137,145,146,147,148,149,154,158
were read on this motion to/for DISMISSAL
Plaintiff Nicholas Wilder, Esq., a self-represented attorney, brought this action against
Fresenius Medical Care Holdings, Inc., Avantus Renal Therapy New York, and their various
employees alleging claims arising out of his dialysis treatment. All defendants now move to
dismiss based upon documentary evidence and for failure to state a claim (CPLR 321 l[a][l],
3211 [a][7]). Defendant Eliot Charen also moves, in the alternative, to compel plaintiff to
provide a more definitive statement.
100841/2018 WILDER, NICHOLAS vs. FRESENIUS MEDICAL CARE Page 1 of4
Motion No. 016 017
[* 1] 1 of 4
FILED: NEW YORK COUNTY CLERK 01/29/2025 02:46 PM INDEX NO. 100841/2018
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 01/29/2025
BACKGROUND
The factual and procedural history of the case has been set forth in various decisions of
this Court and the Appellate Division, First Department, familiarity with which is presumed. As
relevant here, by Decision and Order dated April 18, 2023, the Appellate Division permitted the
plaintiff to amend his complaint within specific parameters. Specifically, the Court granted him
leave
... to file the second amended complaint adding factual allegations in
support of the causes of action for violations of New York City and State
Human Rights Laws except to the extent that they relate to his allegedly
being locked out of the defendants' facility, failure to train, failure to
supervise, and negligent retention; and asserting new causes of action for
defamation by defendant Chenille Apurada and new defendant Anuja
Shrestha, breach of the physician-patient privilege, battery, and medical
malpractice except as to the proposed sixteenth cause of action for failure
to provide the drug Epogen and the proposed twentieth cause of action for
deficient ultrafiltration.
(Wilder v Fresenius Med Care Holdings, Inc., 215 AD3d 511,512 [l5t Dept 2023]).
Plaintiff filed a Proposed Second Amended Complaint on October 30, 2023. Rather than
create a new document, plaintiff made various edits on the face of a previous draft, retaining the
date of September 9, 2020. Certain factual allegations are deleted with strike throughs, and
many of the paragraphs and headings for the causes of action are renumbered, with the old
numbers visible but struck through. Additionally, some of those headings are crossed out in
handwritten red marker, but the allegations above which they appear are not.
Defendants contend that the amended pleading fails to comply with the First
Department's order. Apart from objecting to the method of editing, they assert that plaintiff has
improperly reasserted the defamation claim against Judy Ammar, and the medical malpractice
claims against defendants with respect to the administration of Epogen and deficient
100841/2018 WILDER, NICHOLAS vs. FRESENIUS MEDICAL CARE Page 2of4
Motion No. 016 017
[* 2] 2 of 4
FILED: NEW YORK COUNTY CLERK 01/29/2025 02:46 PM INDEX NO. 100841/2018
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 01/29/2025
ultrafiltration. They also argue that plaintiffs nearly four-month delay in filing the complaint
requires that the new claims he was granted leave to assert must be deemed abandoned.
In opposition, plaintiff contends that his amended pleading sufficiently gives notice to
defendants what claims he is and is not asserting. He affirms that he is not pursuing the
defamation or Epogen/ultrafiltration claims, or any claim for which the heading has been crossed
out. While he confirms that he intentionally retained some factual allegations underlying the
defamation claim, he argues that they are also relevant to the claims for failure to train and
supervise. Plaintiff disputes that he has abandoned his claims, averring that any delay in filing
was due to his recovery from heart surgery and his late realization that his first attempt at filing
had been rejected as premature as the case had not yet been remitted by the appellate court.
DISCUSSION
The motions are denied, except to the extent that plaintiff is directed to file, within 30
days of notice of entry, a revised amended complaint which eliminates all of the editing
markings, i.e., the stricken-through allegations, headings and page numbers. Defendants are
entitled to a clean version of the pleadings that dispels any confusion regarding the number and
nature of plaintiffs claims. However, defendants' demand for a dismissal of the complaint in its
entirety is unfounded. The Appellate Division clearly identified which claims were adequately
pled and which could be added, and the Court cannot disregard its decision merely because
plaintiff engaged in inartful and incomplete editing. Furthermore, even if the amended
complaint can be read as pleading claims which go beyond the permissible scope of the appellate
order, the remedy would be to dismiss those particular claims or deem them dismissed, not to
dismiss the entire action (see, e.g., Young v The City ofNew York, 2015 WL 7300930, *1 [Sup
100841/2018 WILDER, NICHOLAS vs. FRESENIUS MEDICAL CARE Page 3 of4
Motion No. 016 017
[* 3] 3 of 4
FILED: NEW YORK COUNTY CLERK 01/29/2025 02:46 PM INDEX NO. 100841/2018
NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 01/29/2025
Ct, NY Co. 2015] [dismissing claims against police officers only, where leave to amend to add
them as defendants had been denied by prior orders of the court).
Plaintiff has clarified that the struck-through claims and allegations are not part of his
complaint, and defendants have not attempted to challenge their sufficiency. The Court also
concurs with plaintiff that the inclusion of allegations mentioning Ammar is not improper given
that they may bear some relevance to causes of action other than the dismissed defamation claim.
Finally, the argument that plaintiff abandoned his claims is without merit. The Appellate
Division did not set a deadline for the filing of the amended pleading or provide for dismissal if
one were not filed within a reasonable time. Nor have defendants qualified for a dismissal under
CPLR 3216, which includes, inter alia, the requirement of a written 90-day notice that dismissal
will be sought for want of prosecution. In any event, the delay in filing was not so excessive in
view of plaintiffs documented health issues and the procedural confusion related to the remitter.
Accordingly, it is hereby
ORDERED, that motions to dismiss are denied, and it is further
ORDERED, that plaintiff is directed to file a revised amended complaint as set forth
above within thirty days of notice of entry of this order.
This constitutes the decision and order of the Court.
1/29/2025
DATE
~
CHECK ONE: CASE DISPOSED
GRANTED 0 DENIED □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
100841/2018 WILDER, NICHOLAS vs. FRESENIUS MEDICAL CARE Page 4 of 4
Motion No. 016 017
[* 4] 4 of 4