| Joyner-Pack v Sykes |
| 2008 NY Slip Op 06805 [54 AD3d 727] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Nyrell Joyner-Pack et al., Respondents, v Joseph Sykes, etal., Appellants, et al., Defendant. |
—[*1] Brown & Tarantino, LLC, Buffalo, N.Y. (Ann M. Campbell of counsel), for appellants DianaWeaver and Gloria Valencia. Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, Eugene S.R.Pagano, Mitchell L. Gittin, and Christopher J. Lennon of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, etc., (1) the defendantJoseph Sykes appeals, as limited by his brief, from so much of an order of the Supreme Court,Kings County (Rosenberg, J.), dated July 27, 2007, as denied that branch of his motion whichwas for summary judgment dismissing the complaint insofar as asserted against him, and (2) thedefendants Diana Weaver and Gloria Valencia appeal, as limited by their brief, from so much ofthe same order as denied their motion for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the motion of the defendants Diana Weaver and Gloria Valencia which was forsummary judgment dismissing the complaint insofar as asserted against Gloria Valencia, andsubstituting therefor a provision granting that branch of the motion; as so modified, the order isaffirmed insofar as appealed from, without costs or disbursements.
The infant plaintiff was born with a rare and serious condition known as tracheobronchialmalacia, where the trachea and bronchi are either underdeveloped or nonexistent and hamper the[*2]respiration process by narrowing on exhalation. Following aseries of episodes in which the oxygen level in his blood and heart rate dropped precipitously, theinfant plaintiff suffered cardiac arrest in the course of being sedated for a diagnostic imagingprocedure and, as a result, sustained injuries.
The infant plaintiff and his mother commenced this action against, among others, thedefendants Joseph Sykes, Diana Weaver, and Gloria Valencia (hereinafter collectively thedefendants). The plaintiffs alleged that the defendants' negligence was the cause of the infantplaintiff's cardiac arrest and his resulting injuries. The defendant Joseph Sykes, the pediatric"intensivist" responsible for the infant plaintiff's treatment in the pediatric intensive care unit,who directed the team response when the infant plaintiff suffered cardiac arrest, moved, interalia, for summary judgment dismissing the complaint insofar as asserted against him at the closeof discovery. The defendants Diana Weaver, a consulting pediatric pulmonologist, and GloriaValencia, a neonatologist who assisted in the team response, moved for summary judgmentdismissing the complaint insofar as asserted against them approximately two months later.
Contrary to the plaintiffs' contention, the Supreme Court properly exercised its discretion inconsidering the belated motion of the defendants Diana Weaver and Gloria Valencia forsummary judgment. Sykes's timely-filed motion for summary judgment was still pending and"made on nearly identical grounds" (Grande v Peteroy, 39 AD3d 590, 592 [2007]; see Boehme vA.P.P.L.E., A Program Planned for Life Enrichment, 298 AD2d 540, 542 [2002]).
The defendants established, prima facie, their entitlement to summary judgment based ontheir affidavits which were detailed, specific, and factual in nature indicating that their treatmentof the infant plaintiff did not depart from good and accepted medical practice (cf. Thomas v Richie, 8 AD3d 363,364 [2004]; Suib v Keller, 6 AD3d805, 806 [2004]; Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755[2001]). In opposition, the plaintiffs submitted the expert opinion of Stuart J. Danoff, the chief ofneonatal medicine at the pediatrics department in a Connecticut hospital since 1984, whoconcluded, inter alia, that the failure to postpone the imaging procedure until the infant plaintiffhad stabilized constituted a departure from good and accepted medical practice.
The plaintiffs' expert was qualified to render an opinion regarding the defendants' allegeddepartures from good and accepted medical practice (cf. Bodensiek v Schwartz, 292AD2d 411 [2002]). While his opinion regarding the alleged negligence of Sykes and Weaverraised triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Shahid v New York City Health & Hosps.Corp., 47 AD3d 798, 799 [2008]; Bengston v Wang, 41 AD3d 625 [2007]; Feinberg v Feit, 23 AD3d 517, 519[2005]; cf. Wiands v Albany Med. Ctr., 29 AD3d 982 [2006]), Danoff's contention thatValencia departed from good and accepted medical practice was not supported by the evidenceand was speculative (see Romano v Stanley, 90 NY2d 444, 451 [1997]; Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]; Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710[2007]; Micciola v Sacchi, 36 AD3d869, 871 [2007]; Thompson vOrner, 36 AD3d 791 [2007]; Sheridan v Bieniewicz, 7 AD3d 508, 509 [2004]).
The defendants' remaining contention is without merit. Santucci, J.P., Angiolillo, Eng andChambers, JJ., concur. [See 2007 NY Slip Op 32499(U).]