| Rizzo v Moseley |
| 2010 NY Slip Op 04983 [74 AD3d 942] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Jacquelyn T. Rizzo, Respondent-Appellant, v Elizabeth H.Moseley et al., Defendants, Johnvito L. Salerno et al., Appellants, and David K. Israel,Respondent. |
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In an action, inter alia, to recover damages for medical malpractice, the defendants JohnvitoL. Salerno and Radiologic Associates, P.C., appeal, and the defendants Takouhie C. Maldjian,Ugo Paolucci, and Westchester County Health Care Corporation separately appeal, as limited bytheir respective briefs, from so much of an order of the Supreme Court, Westchester County(Loehr, J.), dated August 6, 2009, as denied their respective motions for summary judgmentdismissing the complaint and all cross claims insofar as asserted against each of them, and theplaintiff separately appeals from so much of the same order as granted that branch of the motionof the defendant David K. Israel and Orange Regional Medical Center which was for summaryjudgment dismissing the complaint insofar as asserted against the defendant David K. Israel.
Ordered that the order is affirmed insofar as appealed from by the defendants Johnvito L.Salerno, Radiologic Associates, P.C., Takouhie C. Maldjian, Ugo Paolucci, and WestchesterCounty Health Care Corporation; and it is further,
Ordered that the order is reversed insofar as appealed from by the plaintiff, on the law, andthat branch of the motion of the defendants David K. Israel and Orange Regional Medical Centerwhich was for summary judgment dismissing the complaint insofar as asserted against thedefendant David K. Israel is denied; and it is further,[*2]
Ordered that one bill of costs is awarded to the plaintiff,payable by the appellants Johnvito L. Salerno, Radiologic Associates, P.C., Takouhie C.Maldjian, Ugo Paolucci, and Westchester County Health Care Corporation, and the respondentDavid K. Israel, appearing separately and filing separate briefs.
The plaintiff commenced the instant action to recover damages for medical malpractice,alleging that the defendants departed from accepted medical practice by failing to timelydiagnose and treat an intradural lumbar schwannoma, a variety of tumor, and that the delay indiagnosis of approximately five weeks resulted in neurological injuries and an unnecessarysurgery to her thigh. At issue on these appeals are the motions of the defendants Takouhie C.Maldjian, Ugo Paolucci, and Westchester County Health Care Corporation (hereinaftercollectively the Maldjian defendants), the defendants Johnvito L. Salerno and RadiologicAssociates, P.C. (hereinafter together the Salerno defendants), and the defendants David K.Israel and his employer, Orange Regional Medical Center (hereinafter together the Israeldefendants) for summary judgment. The motions of the Maldjian defendants and the Israeldefendants incorporated by reference an affirmation of Dr. Paul C. McCormick, stating that thedelay in diagnosis was not a proximate cause of the plaintiff's injuries, on the ground that hersymptoms were not related to her tumor, and, in any event, her condition at the time of herhospital admission in October 2006 was unstable, requiring a delay of "several days" before thetumor could be removed. The Salerno defendants submitted the affirmation of an expert, Dr.Jacob J. Barie. In opposition, the plaintiff submitted, inter alia, the affirmation of her treatingneurosurgeon. In the order appealed from, the Supreme Court determined that the plaintiff raisedtriable issues of fact with respect to the Maldjian defendants and the Salerno defendants.However, the motion of the Israel defendants for summary judgment was granted on the groundthat the "[p]laintiff has failed to offer any proof as to how Israel departed from good andaccepted medical practice."
Initially, we note that the Supreme Court providently exercised its discretion in entertainingthe Israel defendants' untimely cross motion (see Grande v Peteroy, 39 AD3d 590, 591-592 [2007]). On amotion for summary judgment in a medical malpractice action, a defendant doctor has theburden of establishing the absence of any departure from good and accepted medical practice orthat the plaintiff was not injured by any such departure. In opposition, a plaintiff must submitevidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstratethe existence of a triable issue of fact (see Deutsch v Chaglassian, 71 AD3d 718 [2010], citingAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
On their motion for summary judgment, the Salerno defendants claimed that they did notdepart from good and accepted medical practice and that the alleged departure was not aproximate cause of the plaintiff's injuries in any event. The Maldjian defendants did not addressthe issue of whether they departed from good and accepted medical practice, relying solely ontheir contention that the alleged departure was not a proximate cause of the plaintiff's injuries.Similarly, the Israel defendants did not address the issue of whether Israel departed from goodand accepted medical practice, contending only that the alleged departure was not a proximatecause of the plaintiff's injuries. The evidence in support of the contentions of the severaldefendants was insufficient to establish their respective entitlements to judgment as a matter oflaw. Salerno's testimony raised issues of fact and credibility as to whether the Salerno defendantsdeparted from good and accepted medical practice (see Nye v Putnam Nursing & Rehabilitation Ctr., 62 AD3d 767[2009]; Breco Envtl. Contrs., Inc. vTown of Smithtown, 31 AD3d 359, 360 [2006]). On the issue of proximate cause, Dr.Barie's opinion that Salerno's radiology report did not accompany the patient upon her transfer toWestchester County Medical Center and, therefore, could not have affected her treatment there,is contradicted by the record. Further, Dr. McCormick's opinion that the plaintiff's symptomswere unrelated to her tumor was contradicted by Dr. Paolucci's own deposition testimony, andDr. McCormick failed to address the plaintiff's contention that the five-week delay in treating thetumor was a proximate cause of her injuries.
Accordingly, the Supreme Court properly denied the respective motions of the Maldjiandefendants and the Salerno defendants for summary judgment dismissing the complaint and allcross claims insofar as asserted against them, without regard to the sufficiency of the plaintiff'sopposition papers. The Supreme Court also should have denied that branch of the motion of theIsrael defendants which was for summary judgment dismissing the complaint and all crossclaims insofar as asserted against Israel, [*3]notwithstanding thesufficiency of the plaintiff's opposition papers.
The parties' remaining contentions are without merit, are not properly before this Court, orneed not be addressed in light of our determination. Skelos, J.P., Covello, Hall and Sgroi, JJ.,concur.