| Arkin v Resnick |
| 2009 NY Slip Op 08980 [68 AD3d 692] |
| December 1, 2009 |
| Appellate Division, Second Department |
| Marian Arkin, Appellant, v Sybil Resnick et al.,Defendants, and Piotr Dumicz et al., Respondents. |
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In an action to recover damages for medical malpractice, the plaintiff appeals, as limited byher brief, (1) from so much of a judgment of the Supreme Court, Nassau County (Winslow, J.),entered July 22, 2008, as, upon an order of the same court dated June 9, 2008, granting themotion of the defendants Piotr Dumicz, David Dupree, Colleen Willet, Keri-Ann Kiernan,Alexander Kruglov, and Winthrop University Hospital for leave to renew, and upon renewal,granting summary judgment in their favor, dismissed the complaint insofar as asserted againstthe defendants Colleen Willet, Keri-Ann Kiernan, and Winthrop University Hospital, and (2)from so much of an order of the same court entered December 12, 2008, as, upon reargument ofthe order dated June 9, 2008, adhered to the original determination.
Ordered that the judgment and the order entered December 12, 2008 are affirmed insofar asappealed from, with one bill of costs to the respondents.
On February 1, 2000 61-year-old Carol Abel (hereinafter the decedent) was admitted toWinthrop University Hospital following an automobile accident. At the time of her admission,the decedent suffered from several preexisting medical conditions, including gait and speechdisorders from a stroke approximately two months before. Injuries to her face from the accidentcompromised her airway, and she was connected to a ventilator via endotracheal tube, with aplan to remove her from the ventilator on February 2, 2000. At about 11:00 p.m. on February 2,2000 the decedent pulled out the endotracheal tube but was found, upon examination, to becomfortable and breathing normally. Medical personnel applied an oxygen mask and continuedto monitor the oxygen saturation level in her blood. At about 2:00 a.m. on February 3, 2000 thedecedent showed signs of respiratory distress, and she was again intubated and placed on theventilator. Notations in the medical record thereafter on February 3, 2000 indicated that thedecedent was responding to commands and appeared to be moving all her extremities. OnFebruary 4, 2000 the decedent could follow only some commands and was unable to move herright side. Gradually thereafter, the decedent lapsed into a vegetative state and died in 2003.[*2]
In this action, the decedent's executor (hereinafter theplaintiff) alleges, inter alia, that the respondents Dr. Colleen Willet, Keri-Ann Kiernan, R.N., andtheir employer Winthrop University Hospital (hereinafter collectively the respondents) departedfrom good and accepted standards of medical practice in their actions and omissions on the nightof February 2, 2000 to February 3, 2000, proximately causing the decedent to sustain braindamage. The respondents and other defendants (hereinafter collectively the movants) moved,among other things, for summary judgment dismissing the complaint insofar as asserted againstthe respondents. The motion papers included a document by their medical expert Dr. AlanMensch that was labeled as an "affirmation," but was prefaced with a statement that he had been"duly sworn." However, the document did not have either a jurat or a statement pursuant toCPLR 2106 that Dr. Mensch affirmed the statement to be true under the penalties of perjury. Byorder dated December 30, 2007, the Supreme Court denied the motion on the ground that theaffirmation did not comply with CPLR 2106 or 2309, and thus, the movants failed to profferevidence in admissible form. In support of their motion, in effect, for leave to renew, themovants submitted a substantively identical affirmation with the proper language required byCPLR 2106. By order dated June 9, 2008, the court, upon renewal, granted the motion forsummary judgment dismissing the complaint as to the movants, and on July 22, 2008, enteredjudgment thereon.
Contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise itsdiscretion in granting the motion for leave to renew, allowing the movants the opportunity tocorrect their inadvertent mistake by submitting an identical affirmation in the proper form(see CPLR 2201, 2221 [e]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391[2008]; Acosta v Rubin, 2 AD3d657, 658 [2003]; DeLeonardis vBrown, 15 AD3d 525, 526 [2005]; Baluchinsky v General Motors Corp., 248AD2d 574, 575 [1998]). In support of their motion for summary judgment, the movants had theinitial burden of establishing the absence of any departure from good and accepted medicalpractice or that the plaintiff was not injured thereby (see Flanagan v Catskill Regional Med. Ctr., 65 AD3d 563 [2009];Murray v Hirsch, 58 AD3d701, 702 [2009]; Rebozo vWilen, 41 AD3d 457, 458 [2007]; Thompson v Orner, 36 AD3d 791 [2007]; Williams v Sahay, 12 AD3d 366,368 [2004]). The Supreme Court properly held, in a portion of the ruling not contested by theplaintiff, that the movants made a prima facie showing that the respondents were entitled tojudgment as a matter of law. The expert opinion of Dr. Mensch that the respondents had notdeparted from good and accepted medical practice and that the decedent's injuries were notproximately caused by the respondents' acts or omissions was supported by the medical recordsand deposition testimony.
After the respondents made a prima facie showing of entitlement to judgment as a matter oflaw, the burden shifted to the plaintiff "to show by sufficient evidentiary proof the existence of atriable factual issue" (Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 359 [1998];see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Behar v Coren, 21 AD3d 1045,1046 [2005]). A physician's affidavit in opposition to a summary judgment motion must attest tothe departure from accepted practice and must contain an opinion that the challenged acts oromissions were a competent producing cause of the injury (see Swezey v Montague Rehab & Pain Mgt., P.C., 59 AD3d 431,433 [2009]; Vera v Soohoo, 41AD3d 586, 587 [2007]; Domaradzki v Glen Cove Ob/Gyn Assoc., 242 AD2d 282[1997]). General allegations that are conclusory and unsupported by competent evidence tendingto establish the essential elements of medical malpractice are insufficient to defeat a motion forsummary judgment (see Alvarez v Prospect Hosp., 68 NY2d at 325; Flanagan vCatskill Regional Med. Ctr., 65 AD3d at 565; Rebozo v Wilen, 41 AD3d at 458;Thompson v Orner, 36 AD3d at 792). The plaintiff's expert is required to show that thealleged departure was a substantial factor in producing the injury (see Zak v Brookhaven Mem. Hosp. Med.Ctr., 54 AD3d 852, 853 [2008]; Lyons v McCauley, 252 AD2d 516, 517[1998]).
The Supreme Court properly determined that the opinion of the plaintiff's unnamed expertwith respect to proximate cause was conclusory. The plaintiff's expert failed to address theevidence cited by Dr. Mensch that the decedent did not exhibit symptoms of anoxic braindamage on the day after the reintubation and further ignored evidence in the medical recordsregarding a previously undetected injury that appeared on a CT scan of the decedent's head takenon February 4, 2000 that was suggestive of either a nonhemorrhagic contusion from theautomobile accident or a cerebral artery infarct (see Zak v Brookhaven Mem. Hosp. Med.Ctr., 54 AD3d at 853). The [*3]plaintiff's expert failed to linkthe decedent's injuries to any departure from accepted practice which occurred on the night ofFebruary 2, 2000 to February 3, 2000 in relation to the decedent's episode of respiratory distress,and thus, failed to raise a triable issue of fact on the issue of proximate cause sufficient to defeatthe motion (see Murray v Hirsch, 58 AD3d at 703; Myers v Ferrara, 56 AD3d 78, 85 [2008]; Anderson vLamaute, 306 AD2d 232, 233 [2003]; DiMitri v Monsouri, 302 AD2d 420, 421[2003]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Miller, Dickerson andRoman, JJ., concur.