| Shectman v Wilson |
| 2009 NY Slip Op 09208 [68 AD3d 848] |
| December 8, 2009 |
| Appellate Division, Second Department |
| Hunter Shectman et al., Respondents, v Stephen Wilson etal., Appellants. |
—[*1] Garson DeCorato & Cohen, LLP, New York, N.Y. (Kari A. Merolesi, Joshua R. Cohen, andDaniel G. Federico of counsel), for appellant Christine Duncan. Shaub Ahmuty Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and Juan C.Gonzalez of counsel), for appellant Long Island Jewish Medical Center. Anthony C. Casamassima, Commack, N.Y., for respondents.
In an action to recover damages for medical malpractice, etc., the defendant Stephen Wilsonappeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County(O'Donoghue, J.), dated April 18, 2008, as denied that branch of his motion which was forsummary judgment dismissing the complaint insofar as asserted against him, and the defendantsChristine Duncan and Long Island Jewish Medical Center separately appeal, as limited by theirrespective briefs, from so much of the same order as denied their separate motions for summaryjudgment dismissing the complaint insofar as asserted against each of them.
Ordered that the order is reversed insofar as appealed from, on the law, on the facts, and inthe exercise of discretion, with one bill of costs to the appellants appearing separately and filingseparate briefs, that branch of the motion of the defendant Stephen Wilson which was forsummary judgment dismissing the complaint insofar as asserted against him is granted, and theseparate motions of the defendants Christine Duncan and Long Island Jewish Medical Center forsummary judgment dismissing the complaint insofar as asserted against each of them aregranted.
On a motion for summary judgment dismissing the complaint in a medical malpracticeaction, a defendant physician has the burden of establishing the absence of any departure fromgood and accepted medical practice, or, if there was a departure, that the plaintiff was not injuredthereby (see Murray v Hirsch, 58AD3d 701 [2009]; Shahid v NewYork City Health & Hosps. Corp., 47 AD3d 800, 801 [2008]; see generally Alvarezv Prospect Hosp., 68 NY2d 320, 324 [1986]). In opposition, a plaintiff must submit theaffidavit of a physician attesting to a departure from good and accepted practice, and stating thephysician's opinion that the alleged departure was a competent producing cause of the plaintiff'sinjuries (see Swezey [*2]v Montague Rehab & Pain Mgt., P.C., 59 AD3d 431, 433[2009]; Murray v Hirsch, 58 AD3d at 701; Shahid v New York City Health & Hosps.Corp., 47 AD3d at 801). A plaintiff cannot rebut a defendant physician's showing that he orshe was not negligent and defeat a motion for summary judgment by offering an expert'saffidavit containing general allegations of medical malpractice which are conclusory in natureand unsupported by competent evidence tending to establish the elements of medical malpractice(see Alvarez v Prospect Hosp., 68 NY2d at 324-325; Shahid v New York City Health& Hosps. Corp., 47 AD3d at 801).
Here, the defendant physicians established their prima facie entitlement to judgment as amatter of law by submitting evidence demonstrating that their care and treatment of the plaintiffsdid not depart from good and accepted medical practices. In opposition, the plaintiffs cameforward with the affidavit of a physician, specializing in the fields of obstetrics and gynecology,who contested the opinions of the defendants' respective experts concerning the proximate causeof the infant plaintiff's developmental disabilities. The affidavit of the plaintiffs' expert did notmention whether the physician had any specific training or expertise in pediatrics, psychiatry, orparticularized knowledge as to the relevant disabilities of the infant plaintiff. Moreover, theaffidavit did not indicate that the physician had familiarized himself with the relevant literatureor otherwise set forth how he was, or became, familiar with the applicable standards of care inthis specialized area of practice. " 'While it is true that a medical expert need not be a specialistin a particular field in order to testify regarding accepted practices in that field . . .the witness nonetheless should be possessed of the requisite skill, training, education, knowledgeor experience from which it can be assumed that the opinion rendered is reliable' " (Behar v Coren, 21 AD3d 1045,1046-1047 [2005], quoting Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895[2004]). Thus, where a physician opines outside his or her area of specialization, a foundationmust be laid tending to support the reliability of the opinion rendered (see Geffner v North Shore Univ. Hosp.,57 AD3d 839, 841 [2008]; Bjorke v Rubenstein, 53 AD3d 519, 520 [2008]; Glazer v Choong-Hee Lee, 51 AD3d970, 971 [2008]; Mustello v Berg,44 AD3d 1018, 1019 [2007]; Behar v Coren, 21 AD3d at 1046-1047;Nangano v Mount Sinai Hosp., 305 AD2d 473, 474 [2003]). In the circumstances of thiscase, as the plaintiffs' expert failed to lay the requisite foundation for his asserted familiarity withpediatric developmental disabilities, his affidavit was of no probative value. Accordingly, theplaintiffs failed to raise a triable issue of fact, and the Supreme Court improperly denied thatbranch of Wilson's motion which was for summary judgment dismissing the complaint insofar asasserted against him and Duncan's motion for summary judgment dismissing the complaintinsofar as asserted against her.
Pursuant to CPLR 3212 (f), the trial court has discretion to deny a motion for summaryjudgment, or to order a continuance to permit affidavits to be obtained or disclosure to be had, if"facts essential to justify opposition may exist but cannot then be stated." For the court to delayaction on the motion, the party seeking the delay must "put forth some evidentiary basis tosuggest that discovery might lead to relevant evidence" (Trombetta v Cathone, 59 AD3d 526, 527 [2009]; see Canarick v Cicarelli, 46 AD3d587, 588 [2007]; Kimyagarov vNixon Taxi Corp., 45 AD3d 736, 737 [2007]; Ruttura & Sons Constr. Co. vPetrocelli Constr., 257 AD2d 614, 615 [1999]). The "mere hope" that more discovery woulduncover the existence of a material fact issue is insufficient to delay a summary judgmentdetermination (Giraldo v Morrisey,63 AD3d 784, 785 [2009]; see Mazzaferro v Barterama Corp., 218 AD2d 643[1995]; Gateway State Bank v Shangri-La Private Club for Women, 113 AD2d 791, 792[1985], affd 67 NY2d 627 [1986]). Since the plaintiffs failed to demonstrate that furtherdiscovery would lead to relevant evidence, the Supreme Court improvidently exercised itsdiscretion in denying the motion of the defendant Long Island Jewish Medical Center forsummary judgment dismissing the complaint insofar as asserted against it. Dillon, J.P.,Dickerson, Belen and Roman, JJ., concur. [Prior Case History: 2008 NY Slip Op31602(U).]