| Ocasio-Gary v Lawrence Hosp. |
| 2010 NY Slip Op 00003 [69 AD3d 403] |
| January 5, 2010 |
| Appellate Division, First Department |
| Cindy Ocasio-Gary, Respondent, v Lawrence Hospital etal., Appellants, et al., Defendants. (And a Third-Party Action.) Cindy Ocasio-Gary, Appellant, vSt. Barnabas Hospital, Respondent, et al., Defendants. (And a Third-Party Action.) CindyOcasio-Gary, Respondent, v Lawrence Hospital et al., Defendants, and Gary B. Orin, Appellant.(And a Third-Party Action.) |
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Judgment, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 29, 2008,dismissing the complaint against defendant St. Barnabas Hospital, unanimously reversed, on thelaw, without costs, and the complaint reinstated. Appeal from order, same court and Justice,entered April 18, 2008, which granted defendant St. Barnabas Hospital's motion for summaryjudgment, unanimously dismissed, without costs, as subsumed in appeal from the judgment.Order, same court and Justice, entered October 16, 2008, which, to the extent appealed from,denied the motion by defendant Lawrence Hospital and renewal of a prior motion by third-partydefendant Westchester County Medical Center on behalf of itself and defendants Borchert, Rizviand Dworkin, for change of venue, and granted plaintiff's cross motion to retain venue in BronxCounty, unanimously affirmed, without costs. Order, Supreme Court, Bronx County (Alison Y.Tuitt, J.), entered June 17, 2008, which, to the extent appealed from, denied defendant Orin'scross motion to vacate the note of issue and certificate of readiness and to extend his time toserve a motion for summary judgment, unanimously affirmed, without costs.
The affirmation of St. Barnabas's medical expert fails to establish prima facie that thetreatment of plaintiff's decedent in the emergency room of St. Barnabas Hospital comported withgood and accepted practice. The record shows that the decedent was brought to the emergencyroom by ambulance with complaints of headache, nausea, palpitations and of having an anxietyattack that was not relieved by medications that had been previously prescribed by his privatephysicians. The expert opines that the decedent was appropriately evaluated and appeared torespond favorably and that the evaluation was well within the standard of care for emergencymedicine. However, the expert does not specify in what way the decedent was evaluated and hedoes not elucidate the standard of care for emergency medicine other than to state thatemergency room staff has the limited role of determining whether a patient has a life-threateningor serious illness. While the expert opines that the decedent did not require a urine test, bloodtest, CT scan, MRI or X ray, he does not explain "what defendant did and why" (Wassermanv Carella, 307 AD2d 225, 226 [2003]). This conclusory affidavit is insufficient to establishSt. Barnabas's entitlement to summary judgment (Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]).[*3]
Even had St. Barnabas met its initial burden, plaintiff'sexpert's submission raises triable issues of fact regarding the hospital's negligence (seeDaRonco v White Plains Hosp. Ctr., 215 AD2d 339 [1995]). The trial court should not haverejected the expert's opinion on the ground that the expert failed to expressly state that he or shepossessed the requisite background and knowledge in emergency medicine to render an opinion.The expert, who is board certified in internal medicine, is qualified to render an opinion as todiagnosis and treatment with respect to the symptoms presented by the decedent. In contrast, theexpert's affirmation in Browder v NewYork City Health & Hosps. Corp. (37 AD3d 375 [2007]), cited by the trial court, failedto indicate either the expert's specialty or that he or she possessed the requisite knowledge tofurnish a reliable opinion.
Venue should be retained in Bronx County. The only ground for the motion to change venuewas the dismissal of the complaint against St. Barnabas, and the complaint has been reinstated.
The motion to vacate plaintiff's note of issue, served more than 20 days after service of thatnote, was properly denied as untimely (see 22 NYCRR 202.21 [e]), "no showing ofspecial circumstances or adequate reason for the delay having been offered" (Arnold v NewYork City Hous. Auth., 282 AD2d 378 [2001]). Nor did the court err in finding thatdefendant Orin failed to demonstrate good cause for an extension of time in which to file hismotion for summary judgment (CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652 [2004]).Concur—Mazzarelli, J.P., Sweeny, Catterson, Acosta and Abdus-Salaam, JJ.