| Colao v St. Vincent's Med. Ctr. |
| 2009 NY Slip Op 06310 [65 AD3d 660] |
| August 25, 2009 |
| Appellate Division, Second Department |
| Tara Colao, Respondent-Appellant, v St. Vincent'sMedical Center, Now Known as St. Vincent's Catholic Medical Center of New York, et al.,Appellants, and Stanley Stos et al., Respondents. |
—[*1] Geisler & Gabriele, LLP, Garden City, N.Y. (Avraham Z. Schwartz of counsel), forappellant George Kuczabski. Levine & Grossman, Mineola, N.Y. (Scott D. Rubin of counsel), for respondent-appellant. Stephen P. Haber, White Plains, N.Y., for respondent Stanley Stos. Patrick F. Adams, PLLC, New York, N.Y. (Charles J. Adams, Jay W. Levy, Frank Cali, andJeffrey S. Wolk of counsel), for respondent Phyllis Gelb.
In an action to recover damages for medical malpractice, the defendant St. Vincent's MedicalCenter, now known as St. Vincent's Catholic Medical Center of New York, appeals, as limitedby its brief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.),dated February 11, 2008, as amended March 25, 2008, as denied its motion for summaryjudgment dismissing the complaint insofar as asserted against it, the defendant GeorgeKuczabski separately appeals, as limited by his brief, from so much of the same order as deniedhis separate motion for summary judgment dismissing the complaint insofar as asserted againsthim, and the plaintiff appeals, as limited by her brief, from so much of the same order as grantedthe separate motions of the defendant Stanley Stos and the defendant Phyllis Gelb for summaryjudgment dismissing the complaint insofar as asserted against each of them.
Ordered that the order is modified, on the law, by deleting the provisions thereof granting theseparate motions of the defendant Stanley Stos and the defendant Phyllis Gelb for summaryjudgment dismissing the complaint insofar as asserted against each of them and substitutingtherefor provisions denying those motions; as so modified, the order is affirmed, with one bill ofcosts to the plaintiff payable by the defendants.[*2]
The Supreme Court properly denied the motion of thedefendant George Kuczabski for summary judgment dismissing the complaint insofar as assertedagainst him. In response to his prima facie showing of entitlement to judgment as a matter of law(see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), the plaintiff submitted proof inadmissible form establishing the existence of material issues of fact as to whether Dr.Kuczabski's alleged failure to properly diagnose and treat the plaintiff at the hospital after heraccident contributed to her injury (see Zuckerman v City of New York, 49 NY2d 557[1980]). Contrary to Dr. Kuczabski's contentions, the New York State Department of Health"Statement of Deficiencies" submitted by the plaintiff is admissible evidence under PublicHealth Law § 10 (2) (see Maldonado v Cotter, 256 AD2d 1073 [1998]).
The Supreme Court properly denied the motion of the defendant St. Vincent's MedicalCenter, now known as St. Vincent's Catholic Medical Center of New York (hereinafter St.Vincent's) for summary judgment dismissing the complaint insofar as asserted against it. Inresponse to St. Vincent's prima facie showing of entitlement to judgment as a matter of law, theplaintiff raised triable issues of fact as to whether the misreading of the plaintiff's X rays by St.Vincent's employees affected the subsequent treatment of her cervical spine injury. Where theparties offer conflicting expert opinions, issues of credibility arise requiring jury resolution (see Dandrea v Hertz, 23 AD3d332 [2005]).
The Supreme Court should have denied the motion of the defendant Stanley Stos forsummary judgment dismissing the complaint insofar as asserted against him. Dr. Stos's affidavit,while self-serving, established his entitlement to judgment as a matter of law (see Mackey vSangani, 238 AD2d 919 [1997]). In response, the plaintiff raised a triable issue of fact as towhether Dr. Stos performed contraindicated chiropractic treatment which contributed to herinjury (see Pierson v Good Samaritan Hosp., 208 AD2d 513 [1994]). Dr. Stos's expert'saffidavit, submitted with his reply papers, served only to raise additional triable issues of factregarding the propriety of Dr. Stos's treatment (see Shields v Baktidy, 11 AD3d 671 [2004]).
The Supreme Court should have denied the motion of the defendant Phyllis Gelb forsummary judgment dismissing the complaint insofar as asserted against her. While Dr. Gelbestablished her entitlement to judgment as a matter of law, the plaintiff raised triable issues offact as to whether Dr. Gelb recommended contraindicated chiropractic treatment, andrecommended continued treatment even after the plaintiff's neurologist, after reviewing a CTscan, indicated that treatment should be discontinued (see Gargiulo v Geiss, 40 AD3d 811 [2007]). Spolzino, J.P.,Santucci, Florio and Lott, JJ., concur.