| Dessources v Good Samaritan Hosp. |
| 2009 NY Slip Op 06400 [65 AD3d 1008] |
| September 8, 2009 |
| Appellate Division, Second Department |
| Sabrina Dessources, Appellant, v Good SamaritanHospital et al., Respondents. |
—[*1]
Heidell, Pittoni, Murphy & Bach, LLP, White Plains, N.Y. (Daniel S. Ratner of counsel), forrespondent Good Samaritan Hospital. Rende, Ryan & Downes, LLP, White Plains, N.Y. (Ronald T. Koke of counsel), forrespondent Marcy Rappaport, as administratrix of the estate of Lawrence Rappaport.
In an action to recover damages for medical malpractice, the plaintiff appeals from (1) anorder of the Supreme Court, Orange County (McGuirk, J.), dated January 24, 2008, whichdenied her motion to strike the answer of the defendant Good Samaritan Hospital, and grantedthe separate cross motions of the defendants for summary judgment dismissing the complaint,and (2) a judgment of the same court dated May 28, 2008, which, upon the order, is in favor ofthe defendants and against her dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
On July 4, 1997 Dawn Dessources was admitted to the defendant Good Samaritan Hospital(hereinafter Good Samaritan) where she gave birth to her daughter, the plaintiff SabrinaDessources. The now-deceased Dr. Lawrence J. Rappaport delivered the plaintiff. In the yearsthat followed, Sabrina began to exhibit learning disabilities. The plaintiff, by her mother,commenced this action, alleging that the defendants committed malpractice in delivering her,thereby causing her injuries. Significantly, at her deposition, when asked if any medicalpersonnel ever told her that the infant plaintiff had a brain injury, the mother replied "[n]o."[*2]
The plaintiff sought disclosure of her fetal monitoringstrips, but Good Samaritan was unable to locate them. Sometime after depositions werecompleted, the plaintiff moved to strike Good Samaritan's answer on the ground of spoliation ofevidence. Good Samaritan opposed the motion and cross-moved for summary judgmentdismissing the complaint insofar as asserted against it. Dr. Rappaport separately cross-moved forsummary judgment dismissing the complaint insofar as asserted against him.
In an order dated January 24, 2008 the Supreme Court denied the plaintiff's motion to strikeGood Samaritan's answer, and granted the defendants' separate cross motions for summaryjudgment dismissing the complaint. The court dismissed the action in a judgment dated May 28,2008. The plaintiff appeals from both the order and the judgment.
The defendants established their prima facie entitlement to judgment as a matter of law bysubmitting the affidavits of two expert physicians, who testified that, after examining theplaintiff's delivery chart and post-delivery records from Good Samaritan, as well as herpost-delivery pediatric and school records, they found that the plaintiff showed no sign that shesuffered from any brain injury due to oxygen deprivation during her birth. In opposition, theplaintiff failed to raise a triable issue of fact. Her medical expert's speculative assertions as to thecause of her cognitive difficulties are insufficient to raise a triable issue of fact (see Diaz vNew York Downtown Hosp., 99 NY2d 542, 544 [2002]; Settimo v City of New York, 61 AD3d 840 [2009]; Selmensberger v Kaleida Health, 45AD3d 1435, 1436 [2007]; Langer vBJ's Wholesale Club, Inc., 39 AD3d 714 [2007]; see generally Alvarez v ProspectHosp., 68 NY2d 320, 324-325 [1986]; Zuckerman v City of New York, 49 NY2d557, 562 [1980]).
Moreover, the Supreme Court providently exercised its discretion in denying the plaintiff'smotion to strike Good Samaritan's answer. "The plaintiff failed to establish that the defendantintentionally or negligently failed to preserve crucial evidence after being placed on notice thatsuch evidence might be needed for future litigation" (Sloane v Costco Wholesale Corp., 49 AD3d 522, 523 [2008]).
In any event, even if, under the applicable regulations of the New York State Department ofHealth and/or its own policies, Good Samaritan was required to keep the fetal monitoring stripsintact and failed to, the expert's affidavits showed that in this instance they were not crucialevidence (cf. Baglio v St. John's Queens Hosp., 303 AD2d 341, 342-343 [2003]). Theplaintiff's expert's speculative affidavit to the contrary was insufficient to raise a triable issue offact as to this question (see Diaz v New York Downtown Hosp., 99 NY2d at 544; Settimo v City of New York, 61 AD3d840 [2009]; Selmensberger v Kaleida Health, 45 AD3d at 1436; Langer v BJ's Wholesale Club, Inc., 39AD3d 714 [2007]). Spolzino, J.P., Florio, Covello and Eng, JJ., concur.