| Costello v Kirmani |
| 2008 NY Slip Op 06693 [54 AD3d 656] |
| September 2, 2008 |
| Appellate Division, Second Department |
| Jeannie Costello, Respondent, v Asad Kirmani et al.,Appellants. |
—[*1] Simonson Hess & Leibowitz, P.C., New York (Marijo C. Adimey and Paul Simonson ofcounsel), for respondent.
In an action to recover damages for medical malpractice, the defendants appeal from an orderof the Supreme Court, Kings County (Jackson, J.), dated September 17, 2007, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the motion which was for summary judgment dismissing the complaint insofar asasserted against the defendant Asad Kirmani and substituting therefor a provision granting thatbranch of the motion; as so modified, the order is affirmed, without costs or disbursements.
On July 31, 2002 the plaintiff was admitted to the defendant Beth Israel Medical Center(hereinafter Beth Israel). Two days later, she fell in her hospital room. She subsequentlycommenced the instant action to recover damages for injuries she allegedly sustained as a resultof that fall.
Following the completion of discovery, the defendants moved for summary judgmentdismissing the complaint. The Supreme Court denied the motion. We modify.
The defendants Arnold Winston and Beth Israel met their burden of demonstrating theirentitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). They submitted a medical expert's affirmation establishing, inter alia, that Winston,who was the plaintiff's attending physician during her hospitalization, and the members of BethIsrael's staff who assessed the plaintiff to determine her "risk for falls," did not deviate fromaccepted standards of [*2]medical practice (see Rosenman v Shrestha, 48 AD3d781, 783-784 [2008]). In response, the plaintiff submitted a medical expert's affirmationsufficient to raise triable issues of fact as to whether Winston and Beth Israel's staff did indeeddeviate from accepted standards of medical practice, and, if so, whether any departure was aproximate cause of the plaintiff's alleged injuries (see Wallenquest v Brookhaven Mem. Hosp. Med. Ctr., 28 AD3d538, 539 [2006]). Accordingly, the Supreme Court properly denied those branches of themotion which were for summary judgment dismissing the complaint insofar as asserted againstWinston and Beth Israel.
However, the Supreme Court should have granted that branch of the motion which was forsummary judgment dismissing the complaint insofar as asserted against the defendant AsadKirmani. Kirmani, who, at the time of the plaintiff's hospitalization, was a first-year residentworking at Beth Israel for less than one month, met his burden of demonstrating his entitlementto judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d at 324). Hesubmitted evidence establishing, inter alia, that he implemented a treatment plan created byWinston that was not "so clearly contraindicated by normal practice that ordinary prudencerequire[d] inquiry into" the plan's "correctness" (Cook v Reisner, 295 AD2d 466, 467[2002] [internal quotation marks omitted]; Filippone v St. Vincent's Hosp. & Med. Ctr. ofN.Y., 253 AD2d 616, 618 [1998]). In response, the plaintiff failed to raise a triable issue offact (see Cook v Reisner, 295 AD2d at 467). Skelos, J.P., Covello, Leventhal and Belen,JJ., concur.