| Turi v Birk |
| 2014 NY Slip Op 04751 [118 AD3d 979] |
| June 25, 2014 |
| Appellate Division, Second Department |
[*1]
| Francisca Turi, Appellant, v John Birk, M.D.,et al., Respondents. |
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.
Brown & Tarantino, LLC, White Plains, N.Y. (Katherine W. Dandy of counsel),for respondents John Birk, Joseph Anderson, and Stony Brook Internists.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing andBethany A. Davis Noll of counsel), for respondent Nancy Oswold.
In an action to recover damages for medical malpractice, the plaintiff appeals froman order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated August 2, 2012,which granted the motion of the defendants John Birk, Joseph Anderson, and StonyBrook Internists, and the separate motion of the defendant Nancy Oswold, for summaryjudgment dismissing the complaint insofar as asserted against each of them.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting the motion of the defendants John Birk, Joseph Anderson, and Stony BrookInternists for summary judgment dismissing the complaint insofar as asserted againstthem, and substituting therefor a provision denying the motion; as so modified, the orderis affirmed, with one bill of costs to the plaintiff, payable by the defendants John Birk,Joseph Anderson, and Stony Brook Internists, and one bill of costs to the defendantNancy Oswold, payable by the plaintiff.
Contrary to the plaintiff's contention, the motion of the defendants John Birk, JosephAnderson, and Stony Brook Internists (hereinafter collectively the Stony Brookdefendants), and the separate motion of the defendant Nancy Oswold, for summaryjudgment dismissing the complaint insofar as asserted against each of them, were timely(see CPLR 2211; Cruz vNew York City Hous. Auth., 62 AD3d 643 [2009]).
The Supreme Court properly granted Oswold's motion for summary judgmentdismissing the complaint insofar as asserted against her. Oswold established, prima facie,that she did not depart from good and accepted practice during her limited interactionwith the plaintiff (see Zuckerman v City of New York, 49 NY2d 557, 562[1980]). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]).
However, the Supreme Court should have denied the Stony Brook defendants'motion for summary judgment dismissing the complaint insofar as asserted against them.In support of their motion, the Stony Brook defendants submitted an expert affirmationestablishing, prima facie, that [*2]they did not departfrom accepted medical practice, and that, in any event, any departure was not a proximatecause of the plaintiff's alleged injuries (see Mitchell v Grace Plaza of Great Neck, Inc., 115 AD3d819 [2014]; Williams vBayley Seton Hosp., 112 AD3d 917, 918 [2013]).
In opposition, however, the plaintiff submitted, inter alia, her own expert'saffirmation, which raised triable issues of fact as to whether the Stony Brook defendantsdeparted from accepted medical practice and whether such departure was a proximatecause of her alleged injuries (seeStukas v Streiter, 83 AD3d 18, 24-25 [2011]). Contrary to the Stony Brookdefendants' contention, the affirmation of the plaintiff's expert was not deficient byreason of the redaction of the expert's name, since "[t]he unredacted original was offeredto the court for . . . in camera inspection, as is required" (Cerny v Williams, 32 AD3d881, 886 [2006]; see Marano v Mercy Hosp., 241 AD2d 48, 50 [1998];Carrasquillo v Rosencrans, 208 AD2d 488 [1994]; McCarty v CommunityHosp. of Glen Cove, 203 AD2d 432 [1994]).
In light of our determination, we need not reach the parties' remaining contentions.Dillon, J.P., Balkin, Miller and Maltese, JJ., concur. [Prior Case History: 2012 NYSlip Op 32139(U).]