| Hayden v Gordon |
| 2012 NY Slip Op 00487 [91 AD3d 819] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| Ruthann Hayden et al., Respondents, v Lawrence Gordon,Appellant, et al., Defendants. |
—[*1] Jonathan C. Reiter, New York, N.Y. (Carol G. Stone of counsel), for respondents.
In an action to recover damages for medical malpractice, etc., the defendant LawrenceGordon appeals (1), as limited by his brief, from so much of an order of the Supreme Court,Orange County (Bartlett, J.), dated October 26, 2010, as granted the plaintiffs' motion for leave torenew their opposition to his prior motion for summary judgment dismissing the amendedcomplaint insofar as asserted against him, which had been granted in an order of the same courtdated July 13, 2010, and, upon renewal, denied his motion for summary judgment, and (2) froman order of the same court dated January 6, 2011, which denied his motion for recusal.
Ordered that the order dated October 26, 2010, is affirmed insofar as appealed from; and it isfurther,
Ordered that the order dated January 6, 2011, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
The plaintiff Ruthann Hayden (hereinafter Hayden) was diagnosed with adenoid cysticcarcinoma of the right ear canal on June 13, 2007. Hayden, and her husband, suing derivatively,commenced this action to recover damages for medical malpractice against, among others, theappellant, Lawrence Gordon, an otolaryngologist, who treated her on October 10, 2005, andNovember 1, 2005. The complaint alleged, inter alia, that the appellant failed to perform furthertesting to determine the cause of her right ear complaints, resulting in a delayed diagnosis ofcancer.
Under the circumstances presented, the Supreme Court providently exercised its discretion ingranting the plaintiffs' motion for leave to renew their opposition to the appellant's prior motionfor summary judgment dismissing the amended complaint insofar as asserted against him,allowing the movants the opportunity to correct the technical defect of having submitted anaffirmation rather than a sworn affidavit of their expert physician, who was not "authorized bylaw to practice in" New York as required by CPLR 2106 (see CPLR 2201, 2221 [e];Arkin v Resnick, 68 [*2]AD3d 692, 694 [2009]; DeLeonardis v Brown, 15 AD3d525, 526 [2005]; Acosta vRubin, 2 AD3d 657, 658 [2003]; Wester v Sussman, 304 AD2d 656, 656-657[2003]). Moreover, the Supreme Court did not improvidently exercise its discretion inconsidering the expert affidavit submitted by the plaintiffs, since there was no evidence that thefailure to disclose the identity of their expert witness pursuant to CPLR 3101 (d) (1) (i) wasintentional or willful, and there was no showing of prejudice to the appellant (see Browne v Smith, 65 AD3d 996[2009]; Hernandez-Vega vZwanger-Pesiri Radiology Group, 39 AD3d 710, 710-711 [2007]; Simpson v Tenore& Guglielmo, 287 AD2d 613 [2001]).
Upon renewal, the Supreme Court properly denied the appellant's motion for summaryjudgment. "The essential elements of medical malpractice are (1) a deviation or departure fromaccepted medical practice, and (2) evidence that such departure was a proximate cause of injury"(DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; see Barnett v Fashakin, 85 AD3d 832, 834 [2011]; Guzzi v Gewirtz, 82 AD3d 838[2011]). On a motion for summary judgment dismissing the complaint in a medical malpracticeaction, the defendant doctor has the initial burden of establishing the absence of any departurefrom good and accepted medical practice or that the plaintiff was not injured thereby (see Wexelbaum v Jean, 80 AD3d756, 757 [2011]; Roca v Perel,51 AD3d 757, 758-759 [2008]). "[T]o defeat summary judgment, the nonmoving party needonly raise a triable issue of fact with respect to the element of the cause of action or theory ofnonliability that is the subject of the moving party's prima facie showing" (Stukas v Streiter, 83 AD3d 18, 24[2011]). Thus, where a defendant in a medical malpractice action, in moving for summaryjudgment, makes only a prima facie showing that he or she did not deviate or depart fromaccepted medical practice, the plaintiff, in order to defeat summary judgment, need only raise atriable issue of fact as to the alleged deviation or departure, and need not address the issue ofproximate cause (id. at 24-25).
Here, the appellant established his prima facie entitlement to judgment as a matter of law onthe issue of deviation or departure from accepted medical practice through the submission of hisown affidavit reciting his treatment of Hayden's right ear in October and November of 2005, andhis opinions that she suffered from acute otitis externa (an infection of the exterior ear canal), anarrowed ear canal, and exostosis (an outgrowth of bone) in her right ear, that he properlydiagnosed and treated her ear problems, and that he did not depart from accepted standards ofcare in failing to further investigate her ear problems (see Guzzi v Gewirtz, 82 AD3d at838). In opposition, however, the plaintiffs' submissions raised a triable issue of fact as towhether the appellant's treatment of Hayden departed from accepted standards of medicalpractice (id.). "Summary judgment is not appropriate in a medical malpractice actionwhere the parties adduce conflicting medical expert opinions. Such credibility issues can only beresolved by a jury" (Feinberg v Feit,23 AD3d 517, 519 [2005] [citations omitted]; see Graham v Mitchell, 37 AD3d 408, 409 [2007]). The plaintiffsproffered the affidavit of an expert otolaryngologist, who opined that the appellant had departedfrom good and accepted practice in failing to order a CT scan or other diagnostic testing inOctober of 2005, and in failing to communicate his findings to the referring physician. Theexpert opined that Hayden's cancerous tumor was "slow growing" and "smaller" when theappellant examined her, and that earlier detection would have resulted in a more favorableprognosis. He also stated that the CT scan performed in May of 2007 showed no evidence ofexostosis and that such bone growth does not resolve spontaneously. Accordingly, the plaintiffs'submissions raised triable issues of fact on the issue of deviation or departure from acceptedmedical practice (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
As to the element of proximate cause, the appellant failed to make a prima facie showing thatany departures from accepted medical practice were not the cause of Hayden's injuries (seeBarnett v Fashakin, 85 AD3d at 835; Stukas v Streiter, 83 AD3d at 24). Theappellant's conclusory assertion in his affidavit that since neither he, nor any of the otherphysicians who examined Hayden before him, observed a tumor, it did not exist or was notdetectable in October of 2005, was insufficient to meet his burden. Therefore, because theappellant failed to make a prima facie showing of entitlement to judgment as a matter of law onthe element of proximate cause, the plaintiffs were not obligated to raise a triable issue of factwith respect to this element in their opposition papers (see Stukas v Streiter, 83 AD3d at26).
The Supreme Court providently exercised its discretion in denying the appellant's [*3]motion for recusal, since the appellant failed to provide proof ofany of the statutory grounds for disqualification under Judiciary Law § 14, and did notprove any bias or prejudice on the part of the Supreme Court Justice (see Matter of MacKay v Johnson, 54AD3d 428 [2008]; Vest v Vest,50 AD3d 776 [2008]). Dillon, J.P., Dickerson, Eng and Leventhal, JJ., concur.