| Sushchenko v Dyker Emergency Physicians Serv., P.C. |
| 2011 NY Slip Op 06101 [86 AD3d 638] |
| July 26, 2011 |
| Appellate Division, Second Department |
| Sergey Sushchenko et al., Appellants, v Dyker EmergencyPhysicians Service, P.C., et al., Respondents, et al., Defendant. |
—[*1] Garson, Gerspach, Decorato & Cohen, LLP, New York, N.Y. (Joshua R. Cohen, Andrew S.Garson, and Lauren J. Daniels of counsel), for respondents Dyker Emergency Physicians Service,P.C., and B.N. Nigam. Ivone, Devine & Jensen, LLP, Lake Success, N.Y. (Brian E. Lee of counsel), for respondentJagannath Singh. Martin Clearwater & Bell, LLP, New York, N.Y. (Ellen B. Fishman, Joseph L. DeMarzo,and Jeff Lawton of counsel), for respondent Victory Memorial Hospital. McAloon & Friedman, P.C., New York, N.Y. (Timothy J. O'Shaughnessy and Charles K.Faillace of counsel), for respondent Ajoy Kumar Pandey.
In a consolidated action to recover damages for medical malpractice, etc., the plaintiffsappeal from a judgment of the Supreme Court, Kings County (Spodek, J.), dated March 16, 2005,which, upon the granting of the motion of the defendants Dyker Emergency Physicians Service,P.C., B.N. Nigam, Jagannath Singh, Victory Memorial Hospital, and Ajoy Kumar Pandeypursuant to CPLR 4401 for judgment as a matter of law at the close of the plaintiffs' case at a jurytrial, is in favor of those defendants and against them, dismissing the complaint insofar asasserted against those defendants.
Ordered that the judgment is affirmed, with one bill of costs to the respondents appearingseparately and filing separate briefs.
The trial court providently exercised its discretion in precluding the plaintiffs' expert witnessfrom testifying regarding causation on the ground that proper CPLR 3101 (d) disclosure was notprovided (see Schwartzberg vKingsbridge Hgts. Care Ctr., Inc., 28 AD3d 463, 464 [2006]; Hubbard v Platzer,260 AD2d 605 [1999]; Rassaei v Kessler, 252 AD2d 577 [1998]; cf. McGlauflin vWadhwa, 265 AD2d 534 [1999]). Proper disclosure of an expert neurologist who was totestify on the subject of causation was not provided to the respondents until several days after thetrial had commenced (see Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d at464-465; Hubbard v Platzer, 260 AD2d at 605; Rassaei v Kessler, 252 AD2d at577). The plaintiffs failed to show good cause for this untimely disclosure (see Quinn vArtcraft Constr., 203 AD2d 444, 445 [1994]; Corning v Carlin, 178 AD2d 576, 577[1991]).[*2]
Expert testimony is necessary to prove a deviation fromthe accepted standard of medical care and to establish proximate cause where, as here, the matteris not within the experience of the ordinary juror (see Lyons v McCauley, 252 AD2d 516,517 [1998]). When the testimony of a necessary expert witness is precluded, and it is thereforeimpossible to make out a prima facie case, it is proper to dismiss the complaint (see Bickford v St. Francis Hosp., 19AD3d 344, 346 [2005]; Rossi v Matkovic, 227 AD2d 609 [1996]; Kalkan vNyack Hosp., 214 AD2d 538, 539 [1995]). The complaint was, therefore, properly dismissedinsofar as asserted against the respondents pursuant to CPLR 4401 (see Szczerbiak vPilat, 90 NY2d 553, 556 [1997]; Godlewska v Niznikiewicz, 8 AD3d 430, 431 [2004]; Smith vVosburgh, 176 AD2d 259 [1991]).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Rivera, J.P., Florio, Eng and Leventhal, JJ., concur.
Motion by the respondents Dyker Emergency Physicians Service, P.C., and B.N. Nigam onan appeal from a judgment of the Supreme Court, Kings County, dated March 16, 2005, to strikestated portions of the appellants' brief and reply brief. By decision and order on motion of thisCourt dated September 15, 2006, the motion was held in abeyance and referred to the Justiceshearing the appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the argument of the appeal, it is
Ordered that the motion is denied. Rivera, J.P., Florio, Eng and Leventhal, JJ., concur.