| Langan v St. Vincent's Hosp. of N.Y. |
| 2009 NY Slip Op 05846 [64 AD3d 632] |
| July 14, 2009 |
| Appellate Division, Second Department |
| John Langan, Appellant, v St. Vincent's Hospital of NewYork et al., Respondents. |
—[*1] Costello, Shea & Gaffney, LLP, New York, N.Y. (Frederick N. Gaffney, Paul E. Blutman,and Margaret S. O'Connell of counsel), for respondent St. Vincent's Hospital of New York. Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, N.Y. (Steven C. Mandell ofcounsel), for respondent Steven Touliopoulos.
In a consolidated action to recover damages for medical malpractice, etc., the plaintiffappeals from an order of the Supreme Court, Nassau County (Adams, J.), entered March 13,2008, which granted the motion of the defendant Steven Touliopoulos and the cross motion ofthe defendant St. Vincent's Hospital of New York for summary judgment dismissing thecomplaint insofar as asserted against each of them.
Ordered that the order is affirmed, with one bill of costs.
The plaintiff's decedent died after undergoing two surgeries following an accident in whichhe was struck by a motor vehicle. An autopsy indicated that the cause of death was the injuriesthe plaintiff's decedent sustained as a result of the accident, and that hypertensive cardiovasculardisease was a contributory cause. The plaintiff commenced this action against the surgeon andthe hospital in which the plaintiff's decedent was treated alleging that, inter alia, the defendantsfailed to diagnose and treat a fatty embolism.
" 'To establish a prima facie case of liability in a medical malpractice action, a plaintiff mustprove (1) the standard of care in the locality where the treatment occurred, (2) that the defendantbreached that standard of care, and (3) that the breach of the standard was the proximate cause ofinjury' " (Barila v Comprehensive PainCare of Long Is., 44 AD3d 806, 807 [2007], quoting Berger v Becker, 272AD2d 565, 565 [2000]). Therefore, on a motion for summary judgment, a defendant has theinitial burden of establishing the absence of any departure from good and accepted medicalpractice or that the plaintiff was not injured thereby (see Sandmann v Shapiro, 53 AD3d 537 [2008]). In opposition, aplaintiff then must submit material or evidentiary facts to rebut the defendant's prima facieshowing that he or she was not negligent in treating the plaintiff (id.). Here, thedefendants established their entitlement to judgment as a matter of law by submitting, inter alia,expert [*2]testimony that they did not depart from acceptedstandards of care (see Barila v Comprehensive Pain Care of Long Is., 44 AD3d at 807).
In opposition, the plaintiff alleged, for the first time, that the plaintiff's decedent died as aresult of the defendants' failure to diagnose and treat cardiac arrhythmia. The Supreme Courtproperly refused to consider the allegation. Although a plaintiff may successfully oppose amotion for summary judgment by relying on an unpleaded cause of action which is supported bythe plaintiff's submission (see MainlineElec. Corp. v Pav-Lak Indus., Inc., 40 AD3d 939 [2007]), in this case, the plaintiff'sinexcusable delay in presenting the alternative cause of action four years after the action wascommenced warranted the Supreme Court's rejection of this new theory of liability (id.; Pinn v Baker's Variety, 32 AD3d463, 464 [2006]; ComsewogueUnion Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 524 [2005]).Accordingly, the Supreme Court properly granted the defendant's respective motion and crossmotion for summary judgment dismissing the complaint insofar as asserted against each of them.
The plaintiff's remaining contentions are without merit. Rivera, J.P., Dillon, Belen and Hall,JJ., concur.