| Restagno v Horwitz |
| 2007 NY Slip Op 09571 [46 AD3d 533] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Dominick Restagno, Appellant, v Jonathan Horwitz et al.,Respondents. |
—[*1] Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Steven J. Ahmuty, Jr.,Christopher Simone, and Robert M. Ortiz of counsel), for respondents.
In an action to recover damages for medical malpractice, the plaintiff appeals from (1) anorder of the Supreme Court, Queens County (Satterfield, J.), dated August 1, 2006, which deniedhis motion pursuant to CPLR 4404 to set aside a jury verdict in favor of the defendants and for anew trial, and (2) a judgment of the same court entered September 22, 2006, which, upon a juryverdict, and upon the order, is in favor of the defendants and against him dismissing thecomplaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).[*2]
On March 21, 2002 the infant plaintiff presented to thedefendant Bayside Pediatric Specialists, P.C. (hereinafter BPS) where the defendant doctors,Jonathan Horwitz and Grace Nunez-Russotto were employed. On that date, the plaintiff wasexamined by Horwitz and diagnosed with an upper respiratory infection. On March 24, 2002 theplaintiff was examined by Nunez-Russotto and was again diagnosed with an upper respiratoryinfection. On March 28, 2002 the plaintiff flew to Arizona and the following day was diagnosedwith left orbital cellulitis, an uncommon bacterial infection that had spread to his left eye. As aresult, the plaintiff permanently lost vision in his left eye. He commenced this action againstHorwitz, Nunez-Russotto, and BPS to recover damages for medical malpractice.
To recover damages for medical malpractice, a plaintiff must establish a deviation ordeparture from accepted medical practice, and that such deviation or departure was a proximatecause of the injuries (see Furey vKraft, 27 AD3d 416 [2006]; Anderson v Lamaute, 306 AD2d 232, 233 [2003];DiMitri v Monsouri, 302 AD2d 420, 421 [2003]). During the jury trial, the plaintiffelicited expert testimony regarding various alleged departures from accepted medical practice bythe individual defendants. After the plaintiff rested, the defendants moved to dismiss thecomplaint on the ground that the plaintiff failed to establish a nexus between the allegeddepartures and the plaintiff's injuries.
The Supreme Court properly limited the plaintiff's theory of liability to whether Horwitz andNunez-Russotto failed to timely prescribe antibiotics to the plaintiff on March 21, 2002 andMarch 24, 2002, respectively. Although the plaintiff elicited expert testimony alleging that theindividual defendants departed from accepted medical practice, the experts failed to explain howthose alleged departures resulted in the plaintiff's injuries (see Falotico v Frankel, 232AD2d 607 [1996]). As a result, the Supreme Court properly declined to submit to the jury thenumerous interrogatories contained in the plaintiff's proposed verdict sheet, as those theories ofrecovery lacked supporting proof relating to causation (see Marzuillo v Isom, 277 AD2d362 [2000]; Randolph v Long Is. Coll. Hosp., 234 AD2d 441 [1996]).
The plaintiff's remaining contention is without merit. Spolzino, J.P., Krausman, Goldsteinand Dickerson, JJ., concur.