| Kelly v Fenton |
| 2014 NY Slip Op 02753 [116 AD3d 923] |
| April 23, 2014 |
| Appellate Division, Second Department |
| James D. Kelly et al., Appellants, v KimberlyFenton, M.D., et al., Defendants, and Frank Darras, M.D.,Respondent. |
—[*1] Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G.Christensen of counsel), for respondent.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Suffolk County(Asher, J.), dated March 30, 2012, as granted the motion of the defendant Frank Darrasfor summary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the motion of the defendant Frank Darras for summary judgment dismissing thecomplaint insofar as asserted against him is denied.
On March 30, 2007, Alex Koehne died at Stony Brook Hospital. Although bacterialcultures of Koehne's cerebral spinal fluid were found to be negative, the doctors at StonyBrook Hospital diagnosed his cause of death as bacterial meningitis. Koehne's parentsrequested that their son's organs be donated, and one of his kidneys was transplanted intothe plaintiff James D. Kelly by Dr. Frank Darras.
A month after his death, an autopsy revealed that Koehne had actually died as aresult of T-cell lymphoma. Following this revelation, Kelly had the kidney removed andunderwent chemotherapy. Kelly, and his wife suing derivatively, commenced this actionto recover damages for medical malpractice.
The Supreme Court should have denied Darras's motion for summary judgmentdismissing the complaint insofar as asserted against him. Darras submitted theaffirmation of a physician who opined that Darras did not depart from accepted standardsof medical care by relying on the diagnosis of the doctors at Stony Brook Hospital thatKoehne died from bacterial meningitis and accepting his kidney for transplant. However,the affirmation did not constitute competent evidence because the attesting physician wasnot authorized by law to practice in this State (see CPLR 2106; Lieber v City of New York, 94AD3d 715, 716 [2012]; Worthy v Good Samaritan Hosp. Med. Ctr., 50 AD3d1023, 1024 [2008]). Further, Darras failed to establish, prima facie, that the alleged[*2]departure was not a proximate cause of Kelly'sinjuries (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 562 [1993];Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314-315 [1980]; Fahey v A.O. Smith Corp., 77AD3d 612, 616 [2010]). Mastro, J.P., Lott, Sgroi and LaSalle, JJ., concur. [PriorCase History: 2012 NY Slip Op 30878(U).]