| Boutin v Bay Shore Family Health Ctr. |
| 2009 NY Slip Op 00639 [59 AD3d 368] |
| February 3, 2009 |
| Appellate Division, Second Department |
| Jean Boutin, Jr., Respondent, v Bay Shore Family HealthCenter et al., Appellants, et al., Defendant. |
—[*1] Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and RobertM. Ortiz of counsel; Deirdre E. Tracey on the brief), for appellants Southside Hospital, Robert J.Lipari, and Bay Shore OBS/GYN Group, P.C., also known as Bay Shore OB/GYN Group, P.C. Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G.Christesen of counsel), for appellant Bernadita Lazo. Rappaport, Glass, Greene & Levine, New York, N.Y. (Alexander J. Wulwick of counsel),for respondent.
In an action to recover damages for medical malpractice, the defendants Bay Shore FamilyHealth Center and County of Suffolk, the defendants Southside Hospital, Robert J. Lipari, andBay Shore OBS/GYN Group, P.C., also known as Bay Shore OB/GYN Group, P.C., and thedefendant Bernadita Lazo separately appeal, as limited by their respective briefs, from so muchof an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated March 29, 2007, asdenied their separate motions for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order is reversed insofar as appealed from by the defendants Bay ShoreFamily Health Center and County of Suffolk, and the defendant Bernadita Lazo, on the law, andthe motions of the defendants Bay Shore Family Health Center and County of Suffolk, and thedefendant [*2]Bernadita Lazo, respectively, for summaryjudgment dismissing the complaint insofar as asserted against them are granted; and it is further,
Ordered that the order is affirmed insofar as appealed from by the defendants SouthsideHospital, Robert J. Lipari, and Bay Shore OBS/GYN, P.C., also known as Bay Shore OB/GYNGroup, P.C., and it is further,
Ordered that one bill of costs is awarded to the defendants Bay Shore Family Health Centerand County of Suffolk and the defendant Bernadita Lazo, appearing separately and filingseparate briefs, payable by the plaintiff, and one bill of costs is awarded to the plaintiff, payableby the defendants Southside Hospital, Robert J. Lipari, and Bay Shore OBS/GYN Group, P.C.,also known as Bay Shore OB/GYN Group, P.C.
The defendant Dr. Robert J. Lipari met his prima facie burden of establishing his entitlementto judgment as a matter of law by submitting an affirmation from an expertobstetrician/gynecologist (hereinafter OB/GYN) which demonstrated, prima facie, that he didnot depart from good and accepted medical practice in his treatment of the plaintiff, and that histreatment was not a proximate cause of the plaintiff's injuries (see Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]; Rebozov Wilen, 41 AD3d 457 [2007]). However, in opposition, the plaintiff submittedaffirmations from an expert OB/GYN and an expert radiologist, which were sufficient to raisetriable issues of fact as to whether Lipari departed from good and accepted medical practice andwhether such departures were a proximate cause of the plaintiff's injuries (see Rosenman v Shrestha, 48 AD3d781, 784 [2008]; Barbuto v Winthrop Univ. Hosp., 305 AD2d 623 [2003]).Accordingly, the motion for summary judgment dismissing the complaint insofar as assertedagainst Lipari was properly denied.
Southside Hospital failed to establish, as a matter of law, that it was not vicariously liable forDr. Lipari's alleged malpractice (see Malcolm v Mount Vernon Hosp., 309 AD2d 704[2003]; Delprete v Victory Mem. Hosp., 191 AD2d 673 [1993]). A triable issue of factexists as to whether the plaintiff sought treatment from Southside Hospital, rather than from aparticular physician (see Halkias v Otolaryngology-Facial Plastic Surgery Assoc., 282AD2d 650 [2001]; Augeri v Massoff, 134 AD2d 308, 309 [1987]). Therefore, the motionfor summary judgment dismissing the complaint insofar as asserted against Southside Hospitalwas properly denied, regardless of the sufficiency of the opposition papers (see Alvarez vProspect Hosp., 68 NY2d at 324).
In response to the showing of the defendant Bernadita Lazo of her entitlement to judgmentas a matter of law in that she did not depart from accepted standards of medical care, the plaintiffcontended that she demonstrated a triable issue of fact as to whether Dr. Lazo was negligent in,inter alia, failing to order a repeat sonogram of the plaintiff's mother. However, this was refutedby the mother's medical records, which showed that a repeat sonogram was ordered to beperformed as required in the 37th or 38th week of pregnancy, but that she went into labor beforeit was done. The plaintiff's physician's speculative and conclusory allegations failed to raise atriable issue of fact as to the sufficiency of that medical order or as to any other action taken byor inaction of Lazo (seeSheenan-Conrades v Winifred Masterson Burke Rehabilitation Hosp., 51 AD3d 769[2008]; Shahid v New York City Health& Hosps. Corp., 47 AD3d 800 [2008]; see generally Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]).
Summary judgment dismissing the complaint should also have been awarded to thedefendants Bay Shore Family Health Center and the County of Suffolk, as the complaint allegesthat [*3]any liability on their part is based only upon theirvicarious liability for the acts of Dr. Lazo. Spolzino, J.P., Florio, Miller and Leventhal, JJ.,concur.