| Shichman v Yasmer |
| 2010 NY Slip Op 05751 [74 AD3d 1316] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Helen Shichman et al., Appellants, v Matthew S. Yasmer,Respondent. |
—[*1] Kaufman Borgeest & Ryan, LLP, Valhalla, N.Y. (Jacqueline Mandell of counsel), forrespondent.
In an action to recover damages for podiatric malpractice, etc., the plaintiffs appeal from (1)an order of the Supreme Court, Nassau County (LaMarca, J.), entered September 8, 2009, whichgranted the defendant's motion for summary judgment dismissing the complaint, and (2) ajudgment of the same court, entered October 2, 2009, which, upon the order, is in favor of thedefendant and against them, dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the facts and as an exercise of discretion, withcosts, the defendant's motion for summary judgment dismissing the complaint is denied, and theorder entered September 8, 2009, is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
The appeal from the intermediate order must be dismissed because the right of appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The plaintiff Helen Shichman (hereinafter the plaintiff) presented to the defendant, Dr.Matthew S. Yasmer, a podiatrist, complaining of bunions on both feet. After an initialconsultation and acquiring a second opinion, the plaintiff opted to have the defendant performsurgery on both of her feet. Following the surgery, the plaintiff commenced this action. Theplaintiff asserted, inter alia, that the manner in which the defendant performed the proceduresconstituted a departure from accepted podiatric practice, and that, as a result, she sufferedinjuries. The defendant moved for summary judgment dismissing the complaint. He relied on,among other things, his office notes and medical records as well as an expert [*2]affidavit, in which the expert opined that the defendant'sperformance of the procedures conformed to good and accepted podiatric practice, and did notproximately cause any injuries suffered by the plaintiff. The plaintiffs opposed the defendant'smotion, relying on, among other things, the affidavit of an expert whose name had been redacted(see CPLR 3101 [d] [1] [i]). The expert, concluding that the defendant's actions didconstitute a deviation from accepted practice, relied on, inter alia, the medical records,deposition testimony, and his or her own physical examination of the plaintiff as well as his orher expertise. In reply, the defendant objected to the plaintiffs' expert affidavit on the ground thatthe plaintiffs failed to serve him with a copy of the expert's physical examination report incompliance with 22 NYCRR 202.17 (b) (1). The defendant asserted that, as a result, theplaintiffs' expert's affidavit, which relied, inter alia, on that physical examination, must beprecluded.
In the order appealed from, the Supreme Court agreed with the defendant, precluded theplaintiffs' expert affidavit in its entirety, and, in the absence thereof, found that the plaintiffsfailed to raise a triable issue of fact in opposition to the defendant's prima facie showing.Accordingly, the court granted the defendant's motion for summary judgment dismissing thecomplaint. The judgment appealed from is in favor of the defendant and against the plaintiffs,dismissing the complaint. We reverse.
A defendant physician moving for summary judgment in a medical malpractice action hasthe initial burden of establishing, prima facie, either the absence of any departure from good andaccepted medical practice or that any departure was not the proximate cause of the allegedinjuries (see Larsen v Loychusuk, 55 AD3d 560, 561 [2008]; Sandmann vShapiro, 53 AD3d 537 [2008]). " 'In opposition, a plaintiff must submit evidentiary facts ormaterials to rebut the defendant physician's prima facie showing, so as to demonstrate theexistence of a triable issue of fact' " (Castro v New York City Health & Hosps. Corp., 74AD3d 1005, 1006 [2d Dept 2010], quoting Deutsch v Chaglassian, 71 AD3d 718, 719[2010]).
The defendant here met his initial burden of establishing his entitlement to judgment as amatter of law, which the plaintiffs do not dispute on appeal. In opposition to the defendant'smotion, the plaintiffs principally relied on their expert's affidavit. However, as the defendantargued and the Supreme Court found, the plaintiffs failed to satisfy their obligations pursuant to22 NYCRR 202.17 to serve the defendant with a report concerning their expert's physicalexamination of the plaintiff. Accordingly, the Supreme Court providently exercised its discretionin precluding so much of the plaintiffs' expert's affidavit as was derived from the expert'sphysical examination of the plaintiff (see Neils v Darmochwal, 6 AD3d 589, 590[2004]). However, under the circumstances presented here, the Supreme Court improvidentlyexercised its discretion in precluding the plaintiffs' expert's opinions in the affidavit which werebased on other evidence in the case (id.). Based on a review of the affidavit, it is clearthat the expert's opinions derived from other sources were not "inextricably intertwined" with hisor her opinions derived from the physical examination of the plaintiff (id.). The expert'sopinion, with regard to certain conclusions, was not dependent or based upon the physicalexamination. For example, the expert's conclusion that the defendant deviated from acceptedpodiatric practice by performing the procedures at issue at the neck of the first metatarsal ratherthan at the head of the first metatarsal, as proper practice allegedly demanded, was based, interalia, on the defendant's own deposition testimony as well as the expert's expertise.
Based on the expert's opinions not dependent on the physical examination, in opposition tothe defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiffsraised a triable issue of fact as to whether the defendant departed from accepted practice andwhether such departure was a competent producing cause of the injury. Accordingly, theSupreme Court should have denied the defendant's motion for summary judgment dismissing thecomplaint. Santucci, J.P., Angiolillo, Dickerson and Austin, JJ., concur.