| Martin v Siegenfeld |
| 2010 NY Slip Op 00934 [70 AD3d 786] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Josephine Martin, Respondent, v "John" Siegenfeld et al.,Defendants, and Clifford Goldstein et al., Appellants. |
—[*1] Friedman, Khafif & Sanchez, LLP, Brooklyn, N.Y. (Andrew M. Friedman of counsel), forrespondent.
In an action to recover damages for medical malpractice, the defendants Clifford Goldstein,Jay Gendal, and Jonathan S. Kusnitz appeal (1) from an order of the Supreme Court, QueensCounty (O'Donoghue, J.), dated March 6, 2008, and (2), as limited by their brief, from so muchof an amended order of the same court dated June 6, 2008, as granted that branch of theplaintiff's motion which was, in effect, to vacate an order of the same court dated September 24,2007, granting their motion for summary judgment dismissing the complaint insofar as assertedagainst them upon the plaintiff's default in opposing their motion, and, in effect, upon vacatur,denied their motion for summary judgment dismissing the complaint insofar as asserted againstthem.
Ordered that the appeal from the order dated March 6, 2008, is dismissed, as that order wassuperseded by the amended order dated June 6, 2008; it is further,
Ordered that the order dated June 6, 2008, is modified, on the law, on the facts, and in theexercise of discretion, by deleting the provision thereof granting that branch of the plaintiff'smotion which was, in effect, to vacate so much of the order dated September 24, 2007, asgranted that branch of the motion of the defendants Clifford Goldstein, Jay Gendal, and JonathanS. Kusnitz which was for summary judgment dismissing the complaint insofar as assertedagainst the defendants Jonathan S. Kusnitz and Jay Gendal, and, in effect, upon vacatur, denyingthat branch of their motion, and substituting therefor a provision denying that branch of theplaintiff's motion; as so modified, the order dated June 6, 2008, is affirmed insofar as appealedfrom, without costs or disbursements, and the order dated March 6, 2008, is modifiedaccordingly.
This action was initiated to recover damages for medical malpractice alleged to haveoccurred in relation to medical care provided to the plaintiff in connection with her pregnancyand the birth [*2]of her child. After discovery, the defendantdoctors Clifford Goldstein, Jay Gendal, and Jonathan S. Kusnitz (hereinafter the appellants)moved for summary judgment dismissing the complaint insofar as asserted against them. Theplaintiff did not submit timely opposition, and her attorney's request for an adjournment wasdenied. In an order dated September 24, 2007 (hereinafter the September 24th order), theSupreme Court granted the appellants' motion as unopposed. The plaintiff subsequently moved,inter alia, in effect, to vacate the September 24th order and, upon vacatur, deny the appellants'motion. The Supreme Court granted this branch of the plaintiff's motion in two orders datedMarch 6, 2008, and June 6, 2008, respectively. On appeal, the appellants argue, inter alia, thatthe September 24th order should not have been vacated because the plaintiff failed to present ameritorious opposition to their motion.
To vacate the September 24th order, the plaintiff was required to demonstrate both areasonable excuse for her default and a meritorious opposition to the appellants' motion (see Rubinfeld v County of Suffolk, 54AD3d 1016 [2008]; Joseph vGMAC Leasing Corp., 44 AD3d 905 [2007]; St. Rose v McMorrow, 43 AD3d 1146 [2007]). The plaintiffestablished law office failure as a reasonable excuse for her default, based upon the need for ashort adjournment to prepare opposition to the appellants' motion and the request therefor (see Efstathiou v Cuzco, LLC, 51AD3d 712 [2008]).
The plaintiff also established a meritorious opposition to the appellants' motion with respectto Dr. Goldstein (see Efstathiou vCuzco, LLC, 51 AD3d 712 [2008]). "The requisite elements of proof in a medicalmalpractice action are a deviation or departure from accepted community standards of practiceand evidence that such departure was a proximate cause of injury or damage" (Geffner v North Shore Univ. Hosp., 57AD3d 839, 842 [2008]; seeFlanagan v Catskill Regional Med. Ctr., 65 AD3d 563 [2009]; Rebozo v Wilen, 41 AD3d 457,458 [2007]).
"On a motion for summary judgment, a defendant doctor has the burden of establishing theabsence of any departure from good and accepted medical practice or that the plaintiff was notinjured thereby" (Rebozo v Wilen, 41 AD3d at 458). "In opposition, the plaintiff mustsubmit a physician's affidavit attesting to the defendant's departure from accepted practice, whichdeparture was a competent producing cause of the injury" (id. at 458). Where the partiesoffer conflicting expert opinions, issues of credibility arise requiring jury resolution (see Colao v St. Vincent's Med. Ctr., 65AD3d 660 [2009]; Feinberg vFeit, 23 AD3d 517 [2005]). Mere conclusory assertions in a physician's affidavitsubmitted in opposition, however, are insufficient (see Dunn v Khan, 62 AD3d 828 [2009]).
In response to the appellants' prima facie showing of their entitlement to judgment as amatter of law by their submission of, inter alia, a physician's affirmation (see Alvarez vProspect Hosp., 68 NY2d 320 [1986]; Roca v Perel, 51 AD3d 757 [2008]), the plaintiff submitted, amongother things, an opposing physician's affirmation. With the submission of this opposingaffirmation, the plaintiff established a meritorious opposition to the appellants' motion withrespect to Dr. Goldstein (see Efstathiouv Cuzco, LLC, 51 AD3d 712 [2008]) because the affirmation raised triable issues offact with respect to Dr. Goldstein (see Wiands v Albany Med. Ctr., 29 AD3d 982[2006]).
Contrary to the appellants' contention, the assertions in the plaintiff's expert affirmation withrespect to Dr. Goldstein were not conclusory, and raised triable issues of fact regarding whetherthat doctor departed from the relevant standards of care and whether his treatment of the plaintiffwas a proximate cause of the plaintiff's injury (see Wiands v Albany Med. Ctr., 29 AD3d982 [2006]). The opinion of the plaintiff's expert conflicted with the opinion of the appellants'expert on key issues relating to Dr. Goldstein's treatment of the plaintiff, such as whetherimproper force was placed upon the plaintiff during her labor and whether a cesarean sectionshould have been performed.
The plaintiff failed, however, to establish a meritorious defense to the motion with respect toDr. Kusnitz or Dr. Gendal (seeRubinfeld v County of Suffolk, 54 AD3d 1016 [2008]). The affirmation of the plaintiff'sexpert failed to raise a triable issue of fact with respect to either of these defendants (see Dunn v Khan, 62 AD3d 828[2009]). The assertions in this affirmation with respect to Dr. Gendal and Dr. Kusnitz weremerely conclusory (see Dunn vKhan, 62 AD3d 828 [2009]).
Thus, the September 24th order was properly vacated with respect to Dr. Goldstein, but[*3]should not have been vacated with respect to Dr. Kusnitz orDr. Gendal. Upon vacatur, the Supreme Court properly denied that branch of the appellants'motion which was for summary judgment dismissing the complaint insofar as asserted againstDr. Goldstein.
The appellants' remaining contentions either are without merit or have been renderedacademic. Rivera, J.P., Dillon, Miller and Roman, JJ., concur.