| Glazer v Choong-Hee Lee |
| 2008 NY Slip Op 04833 [51 AD3d 970] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Regina Glazer, Appellant, v Choong-Hee Lee et al.,Respondents. |
—[*1] Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke and Robert D. Ryan ofcounsel), for respondents Choong-Hee Lee, as executor of the estate of Chong Lee, and theWestchester Medical Group. Gordon & Silber, P.C., New York, N.Y. (Jon D. Lichtenstein of counsel), for respondentsMichael A. Werner and M.A.Z.E. Laboratories.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals (1)from an order of the Supreme Court, Westchester County (Donovan, J.), entered July 19, 2006,which granted the motion of the defendants Choong-Hee Lee, as executor of the estate of ChongLee, and the Westchester Medical Group for summary judgment dismissing the complaint insofaras asserted against them, (2) from an order of the same court also entered July 19, 2006, whichdenied her motion to strike the answer of the defendants Choong-Hee Lee, as executor of theestate of Chong Lee, and the Westchester Medical Group for their failure to appear fordeposition, and (3), as limited by her brief, from so much of an order of the same court alsoentered July 19, 2006, as granted those branches of the motion of the defendants Michael A.Werner and M.A.Z.E. Laboratories which were to dismiss the complaint insofar as asserted bythe plaintiff in her individual capacity against them and to dismiss the complaint insofar asasserted by the plaintiff as executor of the estate of Howard Glazer against them to the extent thatshe sought damages in excess of $2,500.
Ordered that the first and second orders entered July 19, 2006 are affirmed; and it is [*2]further,
Ordered that the third order entered July 19, 2006 is affirmed insofar as appealed from; and itis further,
Ordered that one bill of costs is awarded to the defendants.
In December 2002 Howard Glazer and Regina Glazer (collectively the Glazers) commencedan action against Chong Lee and the Westchester Medical Group (hereinafter collectively the Leedefendants), and Michael Werner and M.A.Z.E. Laboratories (hereinafter collectively the Wernerdefendants). They sought damages sounding in medical malpractice and negligence against theLee defendants and damages sounding in negligence against the Werner defendants. The Glazersalleged that, due to the defendants' actions, they were unable to conceive a child together.Howard Glazer died in June 2004 and Regina Glazer continued the action in her individualcapacity and as executor of his estate (hereinafter the plaintiff). Chong Lee also died during thependency of this action. Choong-Hee Lee, the executor of his estate, was substituted as a partydefendant.
The Lee defendants established their prima facie entitlement to summary judgmentdismissing the medical malpractice causes of action insofar as asserted against them bysubmitting an expert's affirmation showing that the treatment Dr. Lee rendered to Howard Glazerconformed to good and accepted medical practice (see Alvarez v Prospect Hosp., 68NY2d 320 [1986]; Mustello v Berg,44 AD3d 1018 [2007]; Behar vCoren, 21 AD3d 1045 [2005]). The burden then shifted to the plaintiff to show theexistence of a triable issue of fact (seeRosen v John J. Foley Skilled Nursing Facility, 45 AD3d 558 [2007]; Holbrook vUnited Hosp. Med. Ctr., 248 AD2d 358 [1998]). The affirmation of the plaintiff's expert wasof no probative value, as it contained opinions outside his area of expertise and did not establisha foundation for his opinions (see Mustello v Berg, 44 AD3d at 1018-1019; Behar vCoren, 21 AD3d at 1046-1047). Thus, it was insufficient to show the existence of a triableissue of fact.
The Lee defendants also demonstrated their entitlement to summary judgment dismissing thenegligence causes of action insofar as asserted against them by showing that even if they werenegligent, any negligence on their part was not a proximate cause of the damages alleged by theplaintiffs (see MONY Life Ins. Co. vCordero, 22 AD3d 815 [2005]; Wilson v Buffa, 294 AD2d 357 [2002]; cf. Howe v Flatbush Presbyt. Church,48 AD3d 419 [2008]). In response, the plaintiff failed to show the existence of a triable issueof fact (see Alvarez v Prospect Hosp., 68 NY2d at 324).
The Supreme Court properly denied the plaintiff's motion to strike the answer of the Leedefendants (see CPLR 3126; Thomas v McGuire Serv. Corp., 251 AD2d 148[1998]).
Contrary to the plaintiff's contention, the liquidated damages clause in the agreement enteredinto by Howard Glazer and the Werner defendants is applicable to the circumstances of this case(see generally Zeer v Azulay, 50AD3d 781 [ 2008]). Consequently, the court properly limited any damages that may berecovered by the estate of Howard Glazer to the sum of $2,500.
The plaintiff's remaining contention is without merit. Lifson, J.P., Florio, Angiolillo andChambers, JJ., concur.