| Cerniglia v Cardiology Consultants of Westchester, P.C. |
| 2012 NY Slip Op 05380 [97 AD3d 520] |
| July 5, 2012 |
| Appellate Division, Second Department |
| Eugene Cerniglia, Respondent, v Cardiology Consultantsof Westchester, P.C., et al., Appellants. |
—[*1] Thomas E. Mehrtens, P.C., Tuckahoe, N.Y., for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendants appeal fromso much of an order of the Supreme Court, Westchester County (Bellantoni, J.), entered July 20,2011, as denied that branch of their motion which was for summary judgment dismissing the firstcause of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
On July 6, 2009, following coronary bypass surgery in June 2009, the plaintiff, then 88 yearsold, went to the office of the defendant Cardiology Consultants of Westchester, P.C. (hereinafterCardiology Consultants), for a post-operative checkup with the defendant Martin B. Cohen, theplaintiff's cardiologist for 20 years and a board member and shareholder of CardiologyConsultants. While in the examination room with a medical assistant employed by thedefendants, the plaintiff allegedly was injured when he fell after being weighed. The plaintiffcommenced this action to recover damages allegedly stemming from the defendants' negligenceand medical malpractice. The defendants moved for summary judgment dismissing thecomplaint. The Supreme Court granted that branch of the defendants' motion which was forsummary judgment dismissing the second cause of action, which sought to recover damages formedical malpractice, but denied that branch of the defendants' motion which was for summaryjudgment dismissing the first cause of action, which sought to recover damages for negligence,concluding that the plaintiff raised a triable issue of fact in opposition to the defendants' primafacie showing on that cause of action. The defendants appeal. We affirm, albeit on a differentground.
The defendants failed to establish their prima facie entitlement to judgment as a matter oflaw dismissing the cause of action alleging negligence. A question of fact was presented throughthe defendants' submissions with respect to whether the defendants' medical assistant knew thatthe plaintiff needed assistance getting off the scale and walking towards the examination tableand, if so, whether the defendants' medical assistant was negligent in failing to provide theplaintiff with assistance as he stepped off the scale in the examination room (see D'Elia v Menorah Home & Hosp. forthe Aged & Infirm, 51 AD3d 848 [2008]; Papa v Brunswick Gen. Hosp., 132AD2d 601, [*2]603 [1987]). The defendants' submissions, whichincluded, inter alia, the deposition testimony of their medical assistant, the plaintiff, and theplaintiff's son, who accompanied the plaintiff to the defendants' office on the day of the accidentand was present in the examination room, failed to eliminate all triable issues of fact. Themedical assistant testified that he observed the plaintiff and his son walk "arm-in-arm" to theexamination room and that, while the plaintiff did not request assistance getting onto the scale,the medical assistant did not know definitively whether the plaintiff was assisted on to the scaleby his son. The plaintiff and his son testified that, upon their entry into the examination room, themedical assistant directed the plaintiff's son to, in effect, assist the plaintiff on to the scale to beweighed. Thereafter, the plaintiff was told by the medical assistant to go to the examination table,which was approximately three feet away, while the plaintiff's son sat a distance away, pursuantto the medical assistant's instructions. The plaintiff attempted to go to the examination tableunassisted, and fell. The plaintiff and his son also testified that the plaintiff was in a weakenedcondition on the date of his appointment with Cohen, as it was subsequent to his surgery.Accordingly, since there are facts in dispute and conflicting inferences may be drawn from theevidence, the defendants failed to establish their prima facie entitlement to judgment as a matterof law dismissing the first cause of action, requiring denial of that branch of the defendants'motion (see Benetatos v Comerford,78 AD3d 750 [2010]; Ruiz vGriffin, 71 AD3d 1112 [2010]; Baker v D.J. Stapleton, Inc., 43 AD3d 839 [2007]) regardless of thesufficiency of the plaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]).
The defendants' remaining contentions are improperly raised for the first time on appeal (see NYU Hosp. for Joint Diseases vCountry Wide Ins. Co., 84 AD3d 1043, 1044 [2011]; Matter of Panetta v Carroll, 62 AD3d1010, 1010 [2009]; Pekich v JamesE. Lawrence, Inc., 38 AD3d 632, 633 [2007]). Dillon, J.P., Belen, Austin and Sgroi, JJ.,concur.