| Shields v Kleiner |
| 2012 NY Slip Op 01807 [93 AD3d 710] |
| March 13, 2012 |
| Appellate Division, Second Department |
| Elaine Shields, Respondent, v Morton Kleiner,Appellant. |
—[*1] Howard M. File, Esq., P.C., Staten Island, N.Y. (Martin Rubenstein of counsel), forrespondent.
In an action to recover damages for conscious pain and suffering and wrongful death, thedefendant appeals, as limited by his brief, from so much of an order of the Supreme Court,Richmond County (Fusco, J.), dated May 17, 2011, as granted that branch of the plaintiff'smotion which was for leave to reargue her opposition to that branch of his prior motion forsummary judgment which was to dismiss the wrongful death cause of action, which had beengranted in an order of the same court dated December 7, 2010, upon reargument, vacated thedetermination in that order granting the defendant's motion for summary judgment dismissing thecomplaint in its entirety, and thereupon denied that motion.
Ordered that the order dated May 17, 2011, is modified, on the law, by deleting the provisionthereof, upon reargument, vacating the determination in the order dated December 7, 2010,granting the defendant's motion for summary judgment dismissing the complaint in its entirety,and thereupon, denying that motion and substituting therefor a provision, upon reargument,adhering to so much of the original determination in the order dated December 7, 2010, asgranted that branch of the defendant's motion which was for summary judgment dismissing thewrongful death cause of action; as so modified, the order is affirmed insofar as appealed from,with one bill of costs payable to the defendant.
The decedent, Loretta Prybys, was treated by the defendant over the course of 10 years forher primary care. During that time, the defendant monitored the decedent's diabetes. At somepoint in 2005, the decedent began to look ill and lose weight. In December 2005, the decedentwas diagnosed with colon cancer that had metastasized to her liver. She died three weeks later. InDecember 2007, the plaintiff commenced this action, asserting causes of action to recoverdamages for conscious pain and suffering and wrongful death, both arising out of the defendant'salleged negligence in failing to order certain diagnostic tests from which the decedent's conditioncould have been diagnosed at an earlier time.
The defendant moved for summary judgment dismissing the complaint, and the plaintiffcross-moved for summary judgment on the issue of liability. The Supreme Court granted thedefendant's motion and denied the plaintiff's cross motion. The plaintiff moved for leave toreargue, inter alia, her opposition to that branch of the defendant's motion which was forsummary [*2]judgment dismissing the wrongful death cause ofaction. The Supreme Court granted reargument and thereupon denied the defendant's originalmotion for summary judgment in its entirety. The defendant appeals.
The Supreme Court providently exercised its discretion in granting reargument to theplaintiff insofar as the court found that it had overlooked or misapprehended certain factscontained in the affirmation of the plaintiff's expert (see McNeil v Dixon, 9 AD3d 481, 482 [2004]). However, theplaintiff did not seek reargument of that branch of the defendant's original motion which was forsummary judgment dismissing the conscious pain and suffering cause of action. Thus, only thatbranch of the defendant's motion which was for summary judgment dismissing the wrongfuldeath cause of action was properly at issue upon reargument. Consequently, the Supreme Courtshould not have changed its determination on that branch of the defendant's motion which wasfor summary judgment dismissing the conscious pain and suffering cause of action.
Further, upon reargument, the Supreme Court should have adhered to so much of its originaldetermination as granted that branch of the defendant's motion which was summary judgmentdismissing the wrongful death cause of action. The defendant established prima facie that he didnot depart from good and accepted medical practice. Referencing specific facts in the decedent'smedical records, the defendant's expert opined that the defendant did not need to perform anydiagnostic tests because the decedent exhibited no signs or symptoms of colon cancer, except forweight loss, which could be explained by other factors, including the decedent's other conditions(see Stukas v Streiter, 83 AD3d18 [2011]; Breland v Jamaica Hosp.Med. Ctr., 49 AD3d 789 [2008]; DiMitri v Monsouri, 302 AD2d 420 [2003]).The plaintiff's submission in opposition to the motion, including the conclusory affirmation ofthe plaintiff's expert, was insufficient to raise a triable issue of fact (see Deutsch v Chaglassian, 71 AD3d718 [2010]; Dunn v Khan, 62AD3d 828 [2009]; DiMitri v Monsouri, 302 AD2d at 421). Accordingly, thedefendant was entitled to summary judgment dismissing the wrongful death cause of action.Balkin, J.P., Belen, Hall and Miller, JJ., concur.