| Mehra v Nayak |
| 2013 NY Slip Op 01244 [103 AD3d 857] |
| February 27, 2013 |
| Appellate Division, Second Department |
| Anurag Mehra, Appellant, v Bhaskar C. Nayak etal., Respondents, et al., Defendant. |
—[*1] Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Michael P. Kandler ofcounsel), for respondent Bhaskar C. Nayak. Winget, Spadafora & Schwartzberg, LLP, New York, N.Y. (Robyn Silvermintz andDianna D. McCarthy of counsel), for respondent Joseph Hyler. Ivone, Devine & Jensen, LLP, Lake Success, N.Y. (Robert Devine of counsel), forrespondent HIP Health Plan of New York-Queens Mental Health Service. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner,Megan Burrows Carpenter, and Edward F. X. Hart of counsel), for respondents PublicAdministrator of Kings County, as administrator of the estate of Barbara Crooks,Woodhull Medical and Mental Health Center, and New York City Health and HospitalsCorporation.
In an action, inter alia, to recover damages for medical malpractice and wrongfuldeath, etc., the plaintiff appeals, as limited by his brief, from so much of an order of theSupreme Court, Queens County (O'Donoghue, J.), entered July 8, 2011, as granted themotion of the defendant Bhaskar C. Nayak, the separate motions of the defendant JosephHyler and the defendant HIP Health Plan of New York-Queens Mental Health Service,and that branch of the cross motion of the defendants Public Administrator of KingsCounty, as administrator of the estate of Barbara Crooks, Woodhull Medical and MentalHealth Center, and New York City Health and Hospitals Corporation which was forsummary judgment dismissing the complaint insofar as asserted against each of them,and granted the separate motion of the defendants Public Administrator of Kings County,as administrator of the estate of Barbara Crooks, Woodhull Medical and Mental HealthCenter, and New York City Health and Hospitals Corporation to quash certainsubpoenas.
Ordered that the appeal from so much of the order as granted the motion of thedefendants Public Administrator of Kings County, as administrator of the estate ofBarbara Crooks, Woodhull Medical and Mental Health Center, and New York CityHealth and Hospitals Corporation to quash certain subpoenas is dismissed as academic inlight of our determination on the appeal from [*2]theremainder of the order; and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereofgranting those branches of the separate motions of defendant Bhaksar C. Nayak, thedefendant Joseph Hyler, and the defendant HIP Health Plan of New York-Queens MentalHealth Service which were for summary judgment dismissing the first, fourth, and fifthcauses of action, which were to recover damages for medical and professionalmalpractice, wrongful death, and loss of services, respectively, insofar as asserted againsteach of them, and substituting therefor a provision denying those branches of thosedefendants' respective motions; as so modified, the order is affirmed insofar as reviewed;and it is further,
Ordered that one bill of costs is awarded to the defendants Public Administrator ofKings County, as administrator of the estate of Barbara Crooks, Woodhull Medical andMental Health Center, and New York City Health and Hospitals Corporation, payable bythe plaintiff, and one bill of costs is awarded to the plaintiff, payable by the defendantsJoseph Hyler, Bhaskar C. Nayak, and HIP Health Plan of New York-Queens MentalHealth Service.
After Saly Mehra (hereinafter the decedent) was found in late November 2006 by herteenaged daughter, engaged in an apparent, and unsuccessful, attempt to hang herself, thedecedent's husband, Anurag Mehra (hereinafter the plaintiff), brought the decedent for apsychological consultation at the offices of the defendant HIP Health Plan of NewYork-Queens Mental Health Service (hereinafter HIP). There, after completing a medicalintake questionnaire, in which she expressed recent suicidal ideations, the decedent metwith a psychiatric social worker, the defendant Joseph Hyler. Hyler referred the decedentto the defendant Bhaskar C. Nayak, a psychiatrist at HIP's offices, with whom she metthe next day and who prescribed her various medications. During December 2006, thedecedent had two meetings with Hyler and two meetings with Nayak. The plaintifftestified at his deposition that he informed both Nayak and Hyler, during the meetings, ofthe decedent's prior suicide attempt. The decedent killed herself on December 25, 2006.
The plaintiff, individually and as administrator of the decedent's estate, commencedthis action, inter alia, to recover damages from Nayak and Hyler, and their employer,HIP, for medical malpractice which allegedly caused the decedent's death. The plaintiffalso sought to recover damages for, inter alia, employment discrimination pursuant to theNew York City Human Rights Law (Administrative Code of City of NY § 8-107)and the New York State Human Rights Law (Executive Law art 15) against, amongothers, the decedent's former employer, Woodhull Medical and Mental Health Center ofthe New York City Health and Hospitals Corporation, and the Public Administrator ofKings County, as administrator of the estate of the decedent's former supervisor, BarbaraCrooks (hereinafter collectively the Woodhull defendants), alleging that, before thedecedent's death, the Woodhull defendants discriminated against the decedent in theterms, conditions, and privileges of her employment on the basis of her national originand religion, among other things.
Nayak, Hyler, and HIP each separately moved for summary judgment dismissing thecomplaint insofar as asserted as against each of them, the Woodhull defendantscross-moved, inter alia, for summary judgment dismissing the complaint insofar asasserted against them, and the Woodhull defendants separately moved to quash certainsubpoenas.
The elements of a medical malpractice action are "a deviation or departure fromaccepted community standards of practice, and evidence that such deviation or departurewas a proximate cause of injury or damage" (Castro v New York City Health & Hosps. Corp., 74 AD3d1005, 1006 [2010]). "On a motion for summary judgment, a defendant physician hasthe burden of establishing the absence of any deviation or departure, or that the patientwas not injured thereby. In opposition, the plaintiff need only raise a triable issue of factas to elements on which the defendant has met its prima facie burden" (Ballek v Aldana-Bernier, 100AD3d 811, 813 [2012] [internal quotation marks and citation omitted]). Nayak andHyler each established respective prima facie entitlement to judgment as a matter of lawby submitting, respectively, an expert affirmation and affidavit demonstrating that neitherof them had deviated or departed from accepted standards of [*3]care. Neither Nayak nor Hyler, however, established, primafacie, that no claimed deviation or departure was a proximate cause of the decedent'sinjuries. The affirmation of Nayak's expert offered only a conclusory opinion that thetreatment provided by Nayak was not a proximate cause of the decedent's allegedinjuries, and the affidavit of Hyler's expert offered no opinion as to proximate cause.HIP, which was allegedly vicariously liable as the employer of Nayak and Hyler, alsoestablished its prima facie entitlement to judgment as a matter of law. Consequently, todefeat the motions of Nayak, Hyler, and HIP, the plaintiff was required only todemonstrate that there was a triable issue of fact as to their departure from acceptedstandards of care in their respective professions (see Ballek v Aldana-Bernier,100 AD3d at 813; Barnett vFashakin, 85 AD3d 832, 835 [2011]).
The plaintiff, in opposition to the various motions and cross motion, submitted theaffidavit of an expert which delineated departures by both of Nayak and Hyler from thestandard of care, and raised a triable issue of fact as to whether the treatment decisions ofeach of those two defendants were "something less than a professional medicaldetermination or that [their] decisions were not the product of a careful examination" (Ozugowski v City of NewYork, 90 AD3d 875-876 [2011] [internal quotation marks and citationomitted]). Therefore, the Supreme Court erred in awarding summary judgment to Nayakand Hyler, and their employer, HIP, dismissing the medical and professional malpractice,wrongful death, and loss of services causes of action insofar as against each of them(see id.; see also Ballek v Aldana-Bernier, 100 AD3d at 811; Thomas v Reddy, 86 AD3d602, 604 [2011]; Betty vCity of New York, 65 AD3d 507 [2009]).
The Supreme Court, however, properly granted the Woodhull defendants' motion forsummary judgment dismissing the complaint insofar as asserted against them since theyestablished their prima facie entitlement to judgment as a matter of law. As to the causeof action asserted against the Woodhull defendants to recover damages for employmentdiscrimination, they demonstrated that not every element necessary to a viable claim ofintentional discrimination had occurred, that the decedent suffered no adverseemployment consequences as a result of the alleged acts of discrimination, and that, inany event, nondiscriminatory reasons existed for the challenged actions (see Forrest v Jewish Guild for theBlind, 3 NY3d 295, 305 [2004]; Ehmann v Good Samaritan Hosp. Med. Ctr., 90 AD3d 985[2011]). The plaintiff failed to raise a triable issue of fact in opposition. Moreover,contrary to the plaintiff's contentions, he failed to demonstrate that further discovery wasnecessary in order for him to oppose the Woodhull defendants' motion (seeCPLR 3212 [f]; cf.Cirincione v Atlantic Hylan Corp., 57 AD3d 707 [2008]). Mastro, J.P., Skelos,Leventhal and Chambers, JJ., concur.