| Fishkin v Feinstein |
| 2009 NY Slip Op 08782 [67 AD3d 961] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Renata Fishkin, Respondent, v Galina Feinstein,Appellant, et al., Defendant, et al., and Staten Island University Hospital,Respondent. |
—[*1] Mark M. Basichas & Associates, P.C., New York, N.Y. (Aleksey Feygin of counsel), forplaintiff-respondent.
In an action to recover damages for medical malpractice, the defendant Galina Feinsteinappeals from an order of the Supreme Court, Richmond County (McMahon, J.), dated January 9,2009, which denied her motion for summary judgment dismissing the complaint insofar asasserted against her.
Ordered that the order is affirmed, with costs.
The defendant Galina Feinstein, a medical doctor, conducted a physical examination of theplaintiff's infant son (hereinafter the infant), who presented with abdominal pain, vomiting, andfever. Feinstein diagnosed the infant with a stomach virus. The next day, upon exacerbation ofthe infant's symptoms, the plaintiff brought him to the defendant Staten Island UniversityHospital, where he underwent surgery revealing that he had sustained a ruptured appendix.
The plaintiff, suing individually and on the infant's behalf, commenced this action againstFeinstein, among others, to recover damages for medical malpractice based on, among otherthings, Feinstein's failure to timely diagnose the infant's appendicitis or order appropriatediagnostic tests. The Supreme Court denied Feinstein's motion for summary judgment dismissingthe complaint insofar as asserted against her. Feinstein appeals and we affirm.
The Supreme Court properly denied Feinstein's motion for summary judgment. As an initialmatter, the plaintiff correctly contends that Feinstein was not entitled to summary judgment sincethe papers she submitted in support of her motion failed to include copies of all of the pleadingsfiled in the action, as required by CPLR 3212 (b) (see Wider v Heller, 24 AD3d 433 [2005]; Sted Tenants Owners Corp. v Chumpitaz,5 AD3d 663 [2004]; Deer Park Assoc. v Robbins Store, 243 AD2d 443 [1997];Lawlor v County of Nassau, 166 AD2d 692 [1990]).
In any event, Feinstein's affidavit and other evidence submitted on her motion failed toestablish her prima facie entitlement to judgment as a matter of law (see Rivera v State of New [*2]York, 29 AD3d 772 [2006]; cf. Taylor v Nyack Hosp., 18 AD3d537 [2005]). Feinstein testified during her examination before trial that the symptomstypical of appendicitis include vomiting, abdominal pain, and low-grade fever. Nonetheless,Feinstein submitted conflicting evidence in support of her opinion that the infant's symptomswere atypical for appendicitis, and that he was not suffering from appendicitis at the time sheexamined him (see Center Candy, Inc. vCJB Food Mart, Inc., 50 AD3d 723 [2008]). Feinstein thus failed to make a prima facieshowing that, as a matter of law, she did not depart from good and accepted medical practiceduring the diagnosis and treatment of the infant (see Rivera v State of New York, 29AD3d at 772).
Further, Feinstein failed to establish, prima facie, that any alleged delay in diagnosis was nota proximate cause of the infant's injury (see Nwabude v Sisters of Charity Health Care Sys.Corp., 309 AD2d 909 [2003]; Scanga v Family Practice Assoc. of Rockland, 302AD2d 443 [2003]). Feinstein failed to submit evidence in support of her motion that the rupturedappendix was not caused by a delay in diagnosis or that diagnostic tests, even if ordered, wouldnot have revealed the appendicitis. Thus, Feinstein's motion should have been denied regardlessof the sufficiency of the plaintiff's opposing papers.
In light of our determination, we need not reach the parties' remaining contentions. Mastro,J.P., Santucci, Belen and Chambers, JJ., concur.