| Sellino v Kirtane |
| 2010 NY Slip Op 03894 [73 AD3d 728] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Anna Sellino, as Executrix of Giuseppe Sellino, Deceased,Appellant, v Sanjay S. Kirtane, M.D., et al., Respondents, et al.,Defendant. |
—[*1] Hirsch, Britt & Mose, Garden City, N.Y. (Susan Fagen Britt and Victor A. Carr of counsel),for respondents.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffappeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County(Woodard, J.), dated October 24, 2008, as granted the motion of the defendants Sanjay S.Kirtane, Sanjay S. Kirtane, M.D., P.C., Novus Cardiology Associates, and Lawrence CardiacImaging for summary judgment dismissing the complaint insofar as asserted against them, anddenied, as academic, her cross motion, in effect, to preclude those defendants from limiting theirliability pursuant to CPLR article 16 based on the acts or omissions of the defendants Saeed A.Siddiqui and St. Francis Hospital.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, themotion of the defendants Sanjay S. Kirtane, Sanjay S. Kirtane, M.D., P.C., Novus CardiologyAssociates, and Lawrence Cardiac Imaging for summary judgment dismissing the complaintinsofar as asserted against them is denied, and the plaintiff's cross motion, in effect, to precludethose defendants from limiting their liability pursuant to CPLR article 16 based on the acts oromissions of the defendants Saeed A. Siddiqui and St. Francis Hospital is granted.
In support of their motion for summary judgment, the defendants Sanjay S. Kirtane, SanjayS. Kirtane, M.D., P.C., Novus Cardiology Associates, and Lawrence Cardiac Imaging(hereinafter collectively the defendants) improperly relied upon the affirmation of a physicianwhose name was redacted therefrom (see Mackey v Southampton Hosp., 264 AD2d 410[1999]; Henson v Winthrop Univ. Hosp., 249 AD2d 510 [1998]; Marano v MercyHosp., 241 AD2d 48, 51 [1998]). The attorney's affirmation and remaining exhibitssubmitted by the defendants were insufficient to establish their prima facie entitlement tojudgment as a matter of law. Accordingly, the defendants' motion should have been deniedwithout regard to the sufficiency of the opposing papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]). Although the defendants would ordinarily bepermitted to seek renewal of their motion upon the submission of proper papers, we note that,contrary to the Supreme Court's determination, the affirmation of the plaintiff's expert wassufficient to raise triable issues of fact as to whether the defendants departed from good andaccepted medical practice in their care and treatment of the decedent, and whether suchdepartures were a proximate cause of the decedent's injuries and death (see Henson vWinthrop Univ. [*2]Hosp., 249 AD2d at 510; cf. Mackeyv Southampton Hosp., 264 AD2d at 410; Tranchina v Davison, 253 AD2d 872[1998]). Therefore, renewal of the defendants' motion would be inappropriate in this case.
The Supreme Court should have granted the plaintiff's unopposed cross motion, in effect, topreclude the defendants from limiting their liability pursuant to CPLR article 16 based on theacts or omissions of the defendants Saeed A. Siddiqui and St. Francis Hospital, who wereawarded summary judgment dismissing the complaint insofar as asserted against them (see Johnson v Peloro, 62 AD3d955, 956-957 [2009]). Miller, J.P., Leventhal, Chambers and Lott, JJ., concur.