| Aronov v Soukkary |
| 2013 NY Slip Op 01364 [104 AD3d 623] |
| March 6, 2013 |
| Appellate Division, Second Department |
| David Aronov, Respondent, v Solaima Soukkary etal., Appellants. |
—[*1] Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner and DarylPaxson of counsel), for appellant North Shore University Hospital. Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly,Eugene S.R. Pagano, Mitchell Gittin, and John J. Leen of counsel), forrespondent.
In an action to recover damages for medical malpractice, lack of informed consent,and spoliation of evidence, the defendant North Shore University Hospital appeals, aslimited by its brief, from so much of an order of the Supreme Court, Queens County(O'Donoghue, J.), dated October 25, 2011, as denied that branch of its motion which wasfor summary judgment dismissing the complaint insofar as asserted against it, and thedefendants Solaima Soukkary and Forest Hills Medical Services, P.C., separately appeal,as limited by their brief, from so much of the same order as denied their motion, in effect,for summary judgment dismissing the first cause of action insofar as asserted againstthem.
Ordered that the order is modified, on the law, by deleting the provisions thereofdenying those branches of the motion of the defendant North Shore University Hospitalwhich were for summary judgment dismissing the second cause of action, sounding inlack of informed consent, and the third cause of action, sounding in spoliation ofevidence, insofar as asserted against it, and substituting therefor provisions grantingthose branches of that motion; as so modified, the order is affirmed, with one bill of costspayable to the plaintiff by the defendants Solaima Soukkary and Forest Hills MedicalServices, P.C.
In March 1999, Yelena Aronov (hereinafter the mother), while under the care of thedefendants Solaima Soukkary and Forest Hills Medical Services, P.C. (hereinaftertogether the Soukkary defendants), gave birth to the infant plaintiff at the defendantNorth Shore University Hospital (hereinafter NSUH). In January 2009, the mothercommenced this action on the infant plaintiff's behalf, asserting causes of action torecover damages for medical malpractice, lack of informed consent, and spoliation ofevidence. The Soukkary defendants moved, in effect, for summary judgment dismissingthe first cause of action insofar as asserted against them, and NSUH separately moved,inter alia, for summary judgment dismissing the complaint insofar as asserted [*2]against it. The Supreme Court denied both motions.
" 'In order to establish the liability of a physician for medical malpractice, a plaintiffmust prove that the physician deviated or departed from accepted community standardsof practice, and that such departure was a proximate cause of the plaintiff's injuries' " (DiGeronimo v Fuchs, 101AD3d 933, 936 [2012], quoting Stukas v Streiter, 83 AD3d 18, 23 [2011]). "Accordingly,'[a] physician moving for summary judgment dismissing a complaint alleging medicalmalpractice must establish, prima facie, either that there was no departure or that anydeparture was not a proximate cause of the plaintiff's injuries' " (DiGeronimo vFuchs, 101 AD3d at 936, quoting Gillespie v New York Hosp. Queens, 96 AD3d 901, 902[2012]). " 'Once a defendant physician has made such a showing, the burden shifts to theplaintiff to demonstrate the existence of a triable issue of fact, but only as to the elementson which the defendant met the prima facie burden' " (DiGeronimo v Fuchs, 101AD3d at 936, quoting Gillespie v New York Hosp. Queens, 96 AD3d at 902;see Stukas v Streiter, 83 AD3d at 30). " 'Summary judgment is not appropriate ina medical malpractice action where the parties adduce conflicting medical expertopinions' " (DiGeronimo v Fuchs, 101 AD3d at 936, quoting Feinberg v Feit, 23 AD3d517, 519 [2005]). "Such conflicting expert opinions will raise credibility issueswhich can only be resolved by a jury" (DiGeronimo v Fuchs, 101 AD3d at 936).
Here, the Soukkary defendants established, prima facie, that they did not depart fromaccepted community standards of practice through, inter alia, the affirmation of theirobstetrical expert, Dr. James Howard. In opposition, however, the plaintiff raised atriable issue of fact on that issue.
With regard to NSUH's potential liability, " '[i]n general, a hospital cannot be heldvicariously liable for the negligence of a private attending physician' " (Corletta v Fischer, 101 AD3d929, 930 [2012], quoting Martinez v La Porta, 50 AD3d 976, 977 [2008]; seeHill v St. Clare's Hosp., 67 NY2d 72, 79 [1986]). "Further, a hospital 'cannot be heldconcurrently liable with such a physician unless its employees commit independent actsof negligence or the attending physician's orders are contraindicated by normal practice' "(Corletta v Fischer, 101 AD3d at 930, quoting Cerny v Williams, 32 AD3d881, 883 [2006]; see Sela vKatz, 78 AD3d 681, 683 [2010]; Martinez v La Porta, 50 AD3d at 977).
Here, NSUH established, prima facie, that Soukkary was a private attendingphysician, and that its employees did not commit independent acts of negligence andSoukkary's orders were not contraindicated by normal practice. However, in opposition,the plaintiff raised a triable issue of fact on that issue.
Further, neither the Soukkary defendants nor NSUH established, prima facie, thatany alleged departure was not a proximate cause of the infant plaintiff's injuries.Therefore, the sufficiency of the plaintiff's opposition papers on that issue need not beaddressed (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]; Caggiano vCooling, 92 AD3d 634, 634 [2012]).
Accordingly, the Supreme Court properly denied the Soukkary defendants' motion,in effect, for summary judgment dismissing the first cause of action, sounding in medicalmalpractice, insofar as asserted against them, and properly denied that branch of NSUH'smotion which was for summary judgment dismissing the first cause of action insofar asasserted against it.
NSUH made a prima facie showing of entitlement to judgment as a matter of lawdismissing the second and third causes of action, sounding in lack of informed consentand spoliation of evidence, respectively, insofar as asserted against it, and the plaintiff,who did not respond to those branches of NSUH's motion, failed to raise a triable issueof fact. Accordingly, the Supreme Court should have granted those branches of NSUH'smotion which were for summary judgment dismissing those causes of action insofar asasserted against it.
The appellants' remaining contentions are without merit. Skelos, J.P., Balkin,Dickerson and Hinds-Radix, JJ., concur.