| D'Andraia v Pesce |
| 2013 NY Slip Op 01060 [103 AD3d 770] |
| February 20, 2013 |
| Appellate Division, Second Department |
| Jeanette D'Andraia, Respondent, v Anthony Pesce,Appellant. |
—[*1] Duffy & Duffy, Uniondale, N.Y. (James N. LiCalzi of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice and wrongfuldeath, the defendant appeals from a judgment of the Supreme Court, Suffolk County(Costello, J.), entered February 24, 2011, which, upon an order of the same court (R.Doyle, J.), dated July 16, 2007, denying his motion for summary judgment dismissing thecomplaint, upon a jury verdict in favor of the plaintiff, and upon the denial his motionpursuant to CPLR 4404 (a) to set aside the verdict and for judgment as a matter of law,or, alternatively, to set aside the verdict as against the weight of the evidence and for anew trial, is in favor of the plaintiff and against him in the total sum of $2,482,131.30.
Ordered that the judgment is reversed, on the law, with costs, and a new trial isordered.
In opposition to the defendant's prima facie showing of entitlement to judgment as amatter of law, the plaintiff submitted the affidavit of an expert with specific, detailedallegations which established the existence of triable issues of fact as to whether thedefendant's treatment of the decedent deviated from accepted medical practice and, if so,whether the deviations proximately caused the decedent's injuries and death (see Brady v Westchester CountyHealthcare Corp., 78 AD3d 1097, 1099 [2010]). Thus, the defendant's motionfor summary judgment dismissing the complaint was properly denied.
"Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is thesole arbiter of recusal" (People v Moreno, 70 NY2d 403, 405-406 [1987]). Acourt's decision in this respect may not be overturned unless it was an improvidentexercise of discretion. The trial court providently exercised its discretion in denying thedefendant's recusal motion in this case.
The defendant failed to preserve for appellate review his contention that the medicalrecords of Dr. Matthew S. Lief, a physician who treated the decedent in Florida, couldnot be certified in accordance with CPLR 3122-a, inasmuch as that statute only appliedto records obtained by subpoena, and a subpoena cannot be served out of state. Althoughthe defendant did preserve for [*2]appellate review hiscontention that the certification of the records by Dr. Lief was unreliable, the certificationnonetheless comported with CPLR 3122-a, and "[t]he decision to allow the certifiedbusiness records to be admitted without a live testimonial witness based on a propercertification is ultimately within the court's discretion" (Patrick M. Connors, PracticeCommentaries, McKinney's Cons Law of NY, Book 7B, CPLR C3122-a:4). Thatdiscretion was not improvidently exercised here.
It was error, however, for the Supreme Court to allow, over the defendant'sobjection, the report interpreting the 1993 biopsy of the decedent's prostate, containedwithin Dr. Lief's records, to be introduced into evidence, and to permit the plaintiff'sexperts to base their opinions, at least in part, upon the contents of that report. A writtenreport prepared by a nontestifying doctor interpreting the results of a medical test is notadmissible into evidence (seeClevenger v Mitnick, 38 AD3d 586 [2007]; Jemmott v Lazofsky, 5 AD3d 558 [2004]; Wagman vBradshaw, 292 AD2d 84, 88 [2002]). Moreover, pursuant to the professionalreliability exception to the rule that opinion evidence must be based on facts in the recordor personally known to the witness, an expert may only "rely on out-of-court material if'it is of a kind accepted in the profession as reliable in forming a professional opinion,' "as shown by evidence establishing the reliability of the out-of-court material(Hambsch v New York City Tr. Auth., 63 NY2d 723, 725-726 [1984], quotingPeople v Sugden, 35 NY2d 453, 460 [1974]). Here, there was no proof that thereport was reliable, and the defendant had no opportunity to cross-examine the physicianwho prepared it (see Elshaarawyv U-Haul Co. of Miss., 72 AD3d 878, 882 [2010]; DeLuca v Ding JuLiu, 297 AD2d 307 [2002]; Wagman v Bradshaw, 292 AD2d 84 [2002]).
The plaintiff's theory of the case was that the defendant failed to properly and timelydiagnose the decedent's prostate cancer. In light of the fact that the plaintiff's expertemployed the contents of the inadmissible biopsy report to make the speculative assertionthat the findings of atypical cells in the decedent's prostate in 1993 was indicative of aprecancerous condition, the error cannot be deemed harmless, and the judgment must bereversed.
Moreover, we note, as relevant to the retrial, that there is merit to the defendant'sargument that the probative value of certain photographs of the decedent was so slightthat admitting them into evidence "could not be expected to accomplish any other resultthan to introduce the personal element for the consideration of the jury" (Smith vLehigh Val. R.R. Co., 177 NY 379, 384 [1904]).
The defendant's remaining contentions either are without merit or need not bereached in light of our determination of the appeal. Dillon, J.P., Angiolillo, Dickersonand Hinds-Radix, JJ., concur.