| Ahmed v Pannone |
| 2014 NY Slip Op 02553 [116 AD3d 802] |
| April 16, 2014 |
| Appellate Division, Second Department |
| Rafia Ahmed, Individually and as Executrix of NafisAhmed, Deceased, Respondent, v John Pannone, M.D., et al., Appellants, et al.,Defendant. |
—[*1] Wilser Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Judy C. Selmeciand Lori R. Semlies of counsel), for appellants Carl Tack and Shore Road RadiologyAssociates, P.C., and for defendant Lutheran Medical Center. David L. Taback, P.C., New York, N.Y. (Jennifer A. Fleming of counsel), forrespondent.
In an action to recover damages for medical malpractice, lack of informed consent,and wrongful death, etc., the defendants John Pannone and Nephrology Associates ofBrooklyn appeal, and the defendants Carl Tack and Shore Road Radiology Associates,P.C., separately appeal, as limited by their respective briefs, from so much of an order ofthe Supreme Court, Kings County (Steinhardt, J.), dated May 16, 2012, as granted theplaintiff's motion for leave to reargue her opposition to those branches of their separatemotions which were for summary judgment dismissing the causes of action allegingmedical malpractice and wrongful death, and her derivative cause of action, insofar asasserted against them, which had been granted in an order of the same court (Rosenberg,J.), dated November 7, 2011, and, upon reargument, in effect, vacated those portions ofthe order dated November 7, 2011, which granted those branches of the separatemotions, and thereupon denied those branches of the separate motions.
Ordered that the order dated May 16, 2012, is reversed, on the law, with one bill ofcosts payable to the appellants appearing separately and filing separate briefs, theplaintiff's motion for leave to reargue is denied, and those portions of the order datedNovember 7, 2011, which granted those branches of the separate motions which were forsummary judgment dismissing the causes of action alleging medical malpractice andwrongful death, and the derivative cause of action, insofar as asserted against them arereinstated.
The plaintiff is the widow of the decedent, Nafis Ahmed, and the executor of hisestate. The decedent, who was a surgeon, had diabetes, high blood pressure, and renalinsufficiency. According to the plaintiff, in 2004, the decedent began experiencingproblems with his legs. The decedent's physician, nonparty Dr. Kang, recommended thatthe decedent undergo an angiogram, to evaluate whether the decedent's kidney functionwas compromised. Kang recommended that the defendant Dr. Carl Tack perform theangiogram. The defendant Dr. John Pannone, a nephrologist, was to be involved in theprocedure to, among other things, "protect the [decedent's] kidney." On [*2]August 22, 2004, the decedent was admitted to thedefendant Lutheran Medical Center for the angiogram. The decedent's conditionfollowing the first angiogram "wasn't bad." He was able to walk, sit, and use thebathroom on his own. Additionally, after the first angiogram, the decedent's creatininelevel, which can be indicative of a risk of renal failure, was normal to mildly elevated,and had actually fallen slightly since the decedent was admitted to the hospital. Thefollowing day, Pannone indicated that Kang wanted the decedent to have a secondangiogram, "to get the other kidney done." According to the plaintiff, the decedentoriginally stated that he preferred to undergo an additional angiogram "after a month,maybe." However, subsequently, the decedent agreed to remain in the hospital andundergo a second angiogram to "get it done with and put it behind" him. Following thesecond angiogram, the decedent felt pain in his calf and his toes, and he could not stand.He complained of a burning sensation. The decedent was discharged two days followingthe second procedure. Thereafter, the decedent "got very sick." He was vomiting andpassing dark urine. It is undisputed that, in September 2004, the decedent went to thehospital, where it was discovered that he had acute renal failure, demonstrated by, amongother things, elevated creatinine levels. The decedent began dialysis treatment. In 2007,the decedent underwent a kidney transplant, and subsequently died as a result ofcomplications.
The plaintiff and the decedent originally commenced this action in 2006. Theplaintiff amended the complaint in 2008 to reflect the decedent's death and to assert acause of action to recover damages for wrongful death. The defendants Tack and ShoreRoad Radiology Associates, P.C. (hereinafter together the Radiology defendants),together with the defendant Lutheran Medical Center (hereinafter Lutheran), moved forsummary judgment dismissing the complaint insofar as asserted against them. Thereafter,the defendants Pannone and Nephrology Associates of Brooklyn (hereinafter together theNephrology defendants) separately moved for summary judgment dismissing thecomplaint insofar as asserted against them. The plaintiff opposed the separate motions,relying on two expert affirmations. Both of the plaintiff's experts concluded, with areasonable degree of medical certainty, that the decedent's kidney failure was caused bythe defendants' malpractice in performing the second, contraindicated, intravenouscontrast angiogram, resulting in nephrotoxicity.
In an order dated November 7, 2011, the Supreme Court (Rosenberg, J.), granted thedefendants' separate motions. The court concluded that the defendants established theirprima facie entitlement to judgment as a matter of law, and that, in opposition, theplaintiff's expert affirmations were insufficient to raise a triable issue of fact.
The plaintiff moved for leave to reargue her opposition to those branches of thedefendants' separate motions which were to dismiss the causes of action alleging medicalmalpractice and wrongful death, as well as the derivative cause of action, insofar asasserted against the Pannone defendants and the Radiology defendants. The plaintiffexpressly declined to seek reargument concerning the cause of action premised on lack ofinformed consent and with respect to any claims against Lutheran.
In the order appealed from, the Supreme Court (Steinhardt, J.) granted the plaintiff'smotion for leave to reargue, and, upon reargument, in effect, vacated so much of theorder dated November 7, 2011, as granted those branches of the defendants' motions, andthereupon denied the subject branches of the defendants' separate motions. The courtdetermined that the defendants established their prima facie entitlement to judgment as amatter of law. However, the court further concluded that, in opposition, through herexpert affirmations, the plaintiff succeeded in raising a triable issue of fact. The courtconcluded that, contrary to the determination in the November 7, 2011, order, theplaintiff's expert affirmations were not conclusory. The Nephrology defendants and theRadiology defendants separately appeal. We reverse.
"A motion for leave to reargue 'shall be based upon matters of fact or law allegedlyoverlooked or misapprehended by the court in determining the prior motion, but shall notinclude any matters of fact not offered on the prior motion' " (Grimm v Bailey, 105 AD3d703, 704 [2013], quoting CPLR 2221 [d] [2]; see Matter of American Alternative Ins. Corp. v Pelszynski, 85AD3d 1157, 1158 [2011]). "While the determination to grant leave to reargue amotion lies within the sound discretion [*3]of the court, amotion for leave to reargue is not designed to provide an unsuccessful party withsuccessive opportunities to reargue issues previously decided, or to present argumentsdifferent from those originally presented" (Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d819, 820 [2011] [citations and internal quotations omitted]).
Here, the Supreme Court improvidently exercised its discretion in grantingreargument, as the plaintiff failed to demonstrate that the court overlooked ormisapprehended any matters of fact or law in determining the defendants' separatemotions for summary judgment.
" 'The essential elements of medical malpractice are (1) a deviation or departure fromaccepted medical practice, and (2) evidence that such departure was a proximate cause ofinjury' " (Poter v Adams,104 AD3d 925, 926 [2013], quoting DiMitri v Monsouri, 302 AD2d 420,421 [2003]; see Hayden vGordon, 91 AD3d 819, 820 [2012]; Guzzi v Gewirtz, 82 AD3d 838 [2011]). "On a motion forsummary judgment, a defendant physician 'must make a prima facie showing that therewas no departure from good and accepted medical practice or that the plaintiff was notinjured thereby' " (Poter v Adams, 104 AD3d at 926, quoting Stukas v Streiter, 83 AD3d18, 24 [2011]; see Gillespiev New York Hosp. Queens, 96 AD3d 901, 902 [2012]; Healy v Damus, 88 AD3d848, 849 [2011]; Heller vWeinberg, 77 AD3d 622, 622-623 [2010]). "Once a defendant has made such ashowing, the burden shifts to the plaintiff to 'submit evidentiary facts or materials torebut the prima facie showing by the defendant physician' (Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]), but only as to those elements on which thedefendant met the prima facie burden" (Poter v Adams, 104 AD3d at 926; seeStukas v Streiter, 83 AD3d at 23-24; Gillespie v New York Hosp. Queens,96 AD3d at 902; Garrett vUniversity Assoc. in Obstetrics & Gynecology, P.C., 95 AD3d 823, 825[2012]).
As the Supreme Court correctly concluded, the defendants in their separate motionsestablished their prima facie entitlement to judgment as a matter of law, shifting theburden to the plaintiff. In opposition to the defendants' separate motions, and in supportof her motion for leave to reargue (see generally CPLR 2221 [d] [2]), theplaintiff relied on the affirmations of two physicians, one board-certified in internalmedicine and nephrology, and the other board-certified in diagnostic, interventional, andvascular radiology. In the November 7, 2011, order granting the defendants' separatemotions, the Supreme Court determined that these affirmations consisted of conclusoryand unsupported allegations, that they failed to address the salient issues concerning thedefendants' alleged departures from accepted medical practice, and that they failed torespond to relevant issues raised by the defendants' experts. We agree, and conclude thatthese affidavits were conclusory and speculative, and that they failed to respond torelevant issues raised by the defendants' experts (see generally Khosrova v Westermann, 109 AD3d 965, 967[2013]; Sukhraj v New YorkCity Health & Hosps. Corp., 106 AD3d 809, 810 [2013]). While one of theplaintiff's experts concluded that certain of the decedent's symptoms were consistent withnephrotoxicity resulting from the use of intravenous contrast in the procedures, bothaffirmations were speculative in concluding that the decedent's condition was, in fact,caused by the actions of the defendants in performing the second angiogram. Moreover,the plaintiff's experts failed to differentiate between the acts and omissions of the variousdefendants (see Parrilla vBuccellato, 95 AD3d 1091, 1093 [2012]; Rebozo v Wilen, 41 AD3d 457, 459 [2007]). Thus, theseaffirmations were insufficient to raise a triable issue of fact, and, in granting thedefendants' separate motions in the November 7, 2011, order, the court did not overlookor misapprehend any matters of fact or law. Additionally, because the cause of action torecover damages for wrongful death and the derivative cause of action were bothpremised on the defendants' alleged malpractice, the same conclusion applies to thesecauses of action. Accordingly, the Supreme Court should have denied the plaintiff'smotion for leave to reargue. Dickerson, J.P., Austin and Sgroi, JJ., concur.
Hinds-Radix, J., dissents and votes to affirm the order appealed from, with thefollowing memorandum: The plaintiff's decedent, Dr. Nafis Ahmed, was a 62-year-oldvascular surgeon who [*4]had been diagnosed with renalinsufficiency, high blood pressure, and diabetes. In July 2004, he sought treatment forpain in his legs, and was advised to undergo an angiogram with contrast in order toevaluate vascular insufficiency. The angiogram was performed on August 26, 2004, andindicated that the decedent needed a stent in the left renal artery. Another angiogram wasperformed the next day, on August 27, 2004, to address the left common iliac artery.According to the plaintiff's deposition testimony, after the first procedure, the decedentcould walk and go to the bathroom, but after the second procedure, he could not walk,and experienced pain in his legs, including burning. The next day, he started vomiting,and passed dark urine. On September 17, 2004, the decedent was hospitalized with acuterenal failure.
This action, commenced in 2006, alleged, inter alia, lack of informed consent, andthat the defendants committed medical malpractice, causing the decedent to suffer"contrast induced nephrotoxicity," that is, that the second angiogram was performed tooclose in time to the first angiogram, thereby causing damage to his kidneys from the dyeused in the procedure. On July 19, 2007, the decedent received a kidney transplant, andhe died on July 30, 2007, of complications from that procedure.
The defendants Carl Tack and Shore Road Radiology Associates, P.C. (hereinaftertogether the Radiology defendants), together with the defendant Lutheran MedicalCenter (hereinafter Lutheran), moved for summary judgment dismissing the complaintinsofar as asserted against them, and the defendants John Pannone and NephrologyAssociates of Brooklyn (hereinafter together the Nephrology defendants) separatelymoved for similar relief as to them. In support of their motions, the defendants submittedmedical and hospital records, deposition testimony, and two expert affirmations. Inopposition, the plaintiff submitted two of her own experts' affirmations.
The Nephrology defendants' expert stated that it was not Pannone's function todetermine whether to proceed with the second contrast procedure on August 27, 2004;his function was solely to protect the kidneys from contrast, in the event that a decisionwas made to proceed with the contrast procedure. Although the decedent's creatininelevel of 1.8mg/dl after the first procedure was slightly lower than the 1.9mg/dl measuredthe previous day, indicating some improved kidney function, Pannone acknowledged thathe had "reservations" about a second angiogram which would rechallenge the kidneyswith dye. Pannone claimed that he urged the decedent to wait, but the decedent, afterconsultation with his primary care physician, who is not a party to this action, chose tohave the second angiogram. The expert further stated that after the second procedure, thedecedent had no complaints, but the creatinine level increased to 2.0mg/dl, indicating acholesterol embolism, which caused the decedent's kidneys to fail.
The Radiology defendants' expert stated that, when deciding to perform the secondprocedure, Tack "properly relied upon the clearance of the patient for the performance ofthe procedures by Dr. Pannone." This expert stated that "there is no set time periodrequired to pass in between arteriograms," and the decision to proceed with the secondprocedure so soon after the first was a matter of "clinical judgment." The expertacknowledged that the decedent complained of " 'crampy' abdominal pain" after the firstprocedure, and explained this was not unusual. After the second procedure, thedecedent's creatinine levels went up to 2.0mg/dl, and he experienced leg pain, which wasconsistent with a cholesterol embolism, which may occur spontaneously and evenwithout recent vascular catherizations.
The plaintiff's expert nephrologist concluded that based upon the decedent's medicalhistory of insulin-dependent diabetes, hypertension, and chronic renal insufficiency, asevidenced by his urea nitrogen level of 37 and creatinine level of 2.0mg/dl uponadmission to the hospital, the "decedent was at a greatly elevated risk for acute renalfailure due to the intravenous contrast." The plaintiff's nephrologist stated that "within areasonable degree of medical certainty, . . . subjecting the plaintiff'sdecedent to IV contrast a second time within twenty-four hours was a departure fromgood and accepted practice." She further noted that the decedent's symptoms after thesecond procedure—which included leg pain and burning, vomiting, and darkurine—were "consistent with nephrotoxicity due to the IV contrast," and "within areasonable degree of medical certainty," her opinion was that the decedent's injuries were"directly and proximately caused by defendants' [*5]malpractice, specifically performing the second,contraindicated IV contrast" procedure.
The plaintiff's expert radiologist reiterated the opinion of the nephrologist that, basedupon the decedent's medical history of insulin-dependent diabetes, hypertension, andchronic renal insufficiency, as evidenced by his urea nitrogen level of 37 and creatininelevel of 2.0mg/dl upon admission to the hospital, "the plaintiff's decedent was at a greatlyelevated risk for acute renal failure due to the intravenous contrast." The radiologistfurther stated that the decedent's leg pain immediately after the second procedureindicated that in the event that the decedent suffered a cholesterol embolism, "within areasonable degree of medical certainty, . . . It was caused by the secondcontraindicated procedure."
In reply, the Radiology defendants and Lutheran Medical Center acknowledged thatthe "plaintiff may have raised an issue of fact as to whether it was a departure for thesecond procedure to have been performed within two days of the first," but attributed thatalleged departure to Pannone, who cleared the decedent for the procedure, and thedecedent, who consented to the procedure. Pannone reiterated his argument that thedecedent, "as a vascular surgeon, knowing full well the risks, [decided] that he would goforward with the procedure."
In an order dated November 7, 2011, the Supreme Court (Rosenberg, J.), granted thedefendants' separate motions, concluding that they established their entitlement tojudgment as a matter of law, and that the plaintiff's experts' affidavits in opposition wereinsufficient, because they were conclusory and failed to address salient issues in therecord. The example cited of a failure to address a salient issue in the record was theplaintiff's experts' failure to address the fact that the decedent agreed to two angiogramsusing contrast on consecutive days and "had more knowledge than the average patient ofthe risks and benefits of the procedure because he was a vascular surgeon." However, theevidence in the record indicated that the decedent had no experience in the field ofnephrology and none or very little experience in internal medicine.
In December 2011, the plaintiff filed a notice of appeal from that order and movedfor leave to reargue her opposition to those branches of the defendants' motions whichsought summary judgment dismissing the causes of action alleging medical malpracticeand wrongful death, as well as the derivative cause of action, insofar as asserted againstthe Radiology defendants and the Nephrology defendants. The plaintiff asserted that theSupreme Court misapplied a controlling principle of law by deeming the plaintiff'sexperts' affirmations deficient as a matter of law based solely on an issue of informedconsent, to wit, the fact that the decedent was a vascular surgeon with an awareness ofthe risks of the procedures involved. The plaintiff further argued that, contrary to thecourt's conclusion, her experts' affirmations were not deficient as a matter of law, butrather, raised triable issues of fact with respect to the causes of action sounding inmedical malpractice. She disputed the finding that the opinions of her experts were setforth in conclusory terms, noting, inter alia, that the experts stated, with a reasonabledegree of medical certainty, that the August 27, 2004, procedure was a departure fromgood and accepted medical practice, and that departure caused the decedent to developcontrast-induced nephrotoxicity, which in turn resulted in acute renal failure.
Since Justice Rosenberg had retired, the reargument motion was assigned to JusticeSteinhart. In the order appealed from, dated May 16, 2012, Justice Steinhart agreed withthe plaintiff's contention that Justice Rosenberg "misapplied a principle of law bydeeming plaintiff's experts' affirmations deficient as a matter of law and by holding thatthe experts failed to raise a triable issue of fact," granted leave to reargue and, uponreargument, in effect, vacated so much of the order dated November 7, 2011, as grantedthose branches of the defendants' motions which sought summary judgment dismissingthe causes of action alleging medical malpractice and wrongful death, and the derivativecause of action, insofar as asserted against the Nephrology defendants and the Radiologydefendants, and thereupon denied those branches of the motions.
Contrary to the contention of the Nephrology defendants and the Radiologydefendants, the plaintiff was not using the remedy of reargument as a substitute for atimely direct appeal. The plaintiff filed a notice of appeal from the originaldetermination, as well as moved for leave to reargue (see Bermudez v New York CityHous. Auth., 199 AD2d 356, 357 [1993]). Once the motion [*6]for reargument was decided, the appeal from the originaldetermination was academic.
Contrary to the conclusion of my colleagues in the majority, reargument was properlygranted. The decision of whether to grant reargument is within the sound discretion ofthe motion court (see Matter ofAnthony J. Carter, DDS, P.C. v Carter, 81 AD3d 819, 820 [2011]). A motionfor reargument " 'is not designed to provide an unsuccessful party with successiveopportunities to reargue issues previously decided, or to present arguments different fromthose originally presented' " (id. at 820, quoting McGill v Goldman, 261AD2d 593, 594 [1999]). The movant must make an effort to demonstrate in what mannerthe court, in rendering the original determination, overlooked or misapprehended therelevant facts or law (seeNicolia v Nicolia, 84 AD3d 1327, 1329 [2011]; Matter of Anthony J. Carter,DDS, P.C. v Carter, 81 AD3d at 820). Once the court reviews the merits of themovant's arguments, the court, by doing so, has granted reargument, and must determinewhether to adhere to the original determination, or alter the original determination (see McNeil v Dixon, 9 AD3d481, 482 [2004]). If the movant has alleged that the original determinationoverlooked or misapprehended the relevant facts or law, and the court disagrees, it willadhere to the original determination.
Here, the plaintiff did not submit any new material in support of her motion forreargument, and relied upon the same experts' affirmations. Further, she alleged severalinstances of how the court, in rendering the original determination, overlooked ormisapprehended the relevant facts or law. Since Justice Steinhardt was new to the case,she could not analyze those issues without reviewing the merits of the plaintiff'sarguments (see Schron vTroutman Sanders LLP, 97 AD3d 87 [2012]). Once she did so, she grantedreargument (see e.g. Baez vMarcus, 58 AD3d 585 [2009]; Chase Manhattan Mtge. Corp. v Anatian, 22 AD3d 625[2005]). The question before her was whether, upon reargument, she should vacateportions of the prior determination, or adhere to the portions of the prior determinationchallenged upon reargument (see Askew v City of New York, 70 AD2d 942[1979]).
Upon reargument, the Supreme Court denied those branches of the summaryjudgment motions which sought summary judgment dismissing the causes of actionalleging medical malpractice and wrongful death, and the derivative cause of action,insofar as asserted against the Nephrology defendants and the Radiology defendants. Inso doing, the court concurred with the original determination that those defendantsestablished their prima facie entitlement to judgment as a matter of law, but agreed withthe plaintiff that the opinions of her experts were not conclusory, and raised triable issuesof fact.
"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" (Stukas v Streiter, 83 AD3d18, 23 [2011]). "To prove proximate cause, plaintiffs [are] required to provideexpert testimony establishing that it was more likely than not that defendant's breachcaused the . . . injury, but [are] not oblig[ated] to eliminate all otherpotential causes" (Skelly-Handv Lizardi, 111 AD3d 1187, 1189 [2013]; see Villa v City of New York,148 AD2d 699, 701 [1989]).
A defendant seeking summary judgment "must make a prima facie showing thatthere was no departure from good and accepted medical practice or that the plaintiff wasnot injured thereby, and, in opposition, 'a plaintiff must submit evidentiary facts ormaterials to rebut the defendant's prima facie showing, so as to demonstrate the existenceof a triable issue of fact' " (Stukas v Streiter, 83 AD3d at 24, quoting Deutsch v Chaglassian, 71AD3d 718, 719 [2010]). The defendants' expert affirmations stated that, with areasonable degree of medical certainty, the defendants comported with the acceptedstandards of medical care and that none of the treatment rendered by the defendantscaused or contributed to the injuries alleged. In opposition, the plaintiff's experts statedcategorically that, based upon the decedent's medical history, the second procedure was adeparture from good and accepted medical practice, and that, based upon the decedent'ssymptoms after the second procedure, that second procedure was a proximate cause ofhis injuries. In reply, the Radiology defendants acknowledged that there "may" be anissue of fact as to whether it was a departure for the second procedure to have beenperformed within two days of the first, which would be attributable to Pannone, whocleared the decedent for the procedure, and the [*7]decedent, who consented to the procedure. Pannone soughtto attribute that alleged departure to the decedent, who consented to the procedure.
It is clear from this record that issues of fact exist as to whether the performance ofthe second procedure within two days of the first procedure was in fact a departure, andas to who was responsible for that alleged departure, which warranted the denial ofsummary judgment (seeMcLean v 405 Webster Ave. Assoc., 98 AD3d 1090, 1094 [2012]). Since asingle departure is in issue here, further differentiation between the acts or omissions ofthe various defendants was unnecessary to raise triable issues of fact as to the defendants'liability (cf. Parrilla vBuccellato, 95 AD3d 1091, 1093 [2012]; Rebozo v Wilen, 41 AD3d 457, 459 [2007]).
The defendants claim that even if the second procedure did in fact cause thedecedent's injuries, those injuries may have been caused by a cholesterol embolism,which may occur spontaneously. Although the plaintiff's radiologist indicated that thedecedent's injuries could have resulted from a cholesterol embolism induced by thesecond procedure, the plaintiff's nephrologist, citing objective facts of the decedent'ssymptoms after the second procedure—which included leg pain, burning,vomiting, and dark urine—noted that those symptoms were "consistent withnephrotoxicity due to the IV contrast," and "within a reasonable degree of medicalcertainty," his opinion was that the decedent's injuries were "directly and proximatelycaused by defendants' malpractice, specifically[,] performing the second, contraindicatedIV contrast" procedure. Thus, contrary to the defendants' contention, their claim that thedecedent's injuries could have been the result of a cholesterol embolism were addressedby the plaintiff's experts (seeFritz v Burman, 107 AD3d 936, 937 [2013]). As previously noted, the plaintiffwas not obligated to eliminate all other potential causes for the decedent's injuries(see Skelly-Hand v Lizardi, 111 AD3d at 1189; Villa v City of NewYork, 148 AD2d at 701). The plaintiff's experts agreed that the second procedurecaused the decedent's injury, and the plaintiff's nephrologist stated that the decedent'ssymptoms indicated that those injuries were the result of the contrast used in theprocedure.
"Summary judgment may not be awarded in a medical malpractice action where theparties adduce conflicting opinions of medical experts" (McKenzie v Clarke, 77 AD3d637, 638 [2010]; seeAdjetey v New York City Health & Hosps. Corp., 63 AD3d 865 [2009]). Here,the plaintiff's submissions were sufficient to raise triable issues of fact. Accordingly,upon reargument, the Supreme Court properly concluded that there were issues of factwhich precluded the granting of summary judgment.