| Santos v Rosing |
| 2009 NY Slip Op 01863 [60 AD3d 500] |
| March 17, 2009 |
| Appellate Division, First Department |
| Zaraiz Santos et al., Respondents, v Mark A. Rosing,M.D., et al., Defendants, and Frank Allen, M.D., Appellant. |
—[*1] Sullivan Papain Block McGrath & Cannavo P.C., New York (Stephen C. Glasser ofcounsel), for Zaraiz Santos and Ana Castillo Santos, respondents. Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for St. BarnabasHospital and St. Barnabas Community Enterprises, Inc., respondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered August 25, 2008, whichgranted plaintiffs' motion for reargument, and, upon reargument, denied the motion of defendantAllen Frank, M.D., sued herein as Frank Allen, M.D., for summary judgment dismissing thecomplaint as against him, unanimously affirmed, without costs.
The court correctly found, upon reargument of defendant's motion for summary judgment,that the evidence submitted by plaintiffs raised an issue of fact that precluded summaryjudgment. The motion was based on defendant's factual contention that he never provided anyprenatal treatment to plaintiff mother and was never consulted by any of the medical personnelwho rendered care and treatment to her during her prenatal visits or during her labor anddelivery. However, a certified nurse midwife testified that she had consulted and collaboratedwith the attending physician in the labor and delivery department when plaintiff presented therea week before she experienced placental abruption, and the medical record identifies defendantas the attending physician that day. This evidence raises the issues whether the midwifeconsulted with defendant concerning the treatment of plaintiff and, if so, whether an impliedphysician-patient relationship arose from the consultation (see Raptis-Smith v St. Joseph'sMed. Ctr., 302 AD2d 246 [2003]; Cogswell v Chapman, 249 AD2d 865, 866-867[1998]; see also Education Law § 6951).
Since defendant's motion was based solely on his assertion that he did not render anytreatment to plaintiff, the burden did not shift to plaintiffs to submit evidence to raise issues offact as to compliance with the standard of care and proximate cause (see Alvarez v ProspectHosp., 68 NY2d 320, 324-325 [1986]). In any event, however, the motion court properlygranted reargument to consider plaintiffs' expert's affirmation, which had been submitted initiallyin [*2]redacted form (see Mattis v Keen, Zhao, 54 AD3d 610, 611-612 [2008]), and theaffirmation was sufficient to raise said issues of fact (see Cruz v St. Barnabas Hosp., 50 AD3d 382 [2008]).
We have considered defendant's remaining contention and find it without merit.Concur—Mazzarelli, J.P., Andrias, Gonzalez, Moskowitz and Renwick, JJ.