| Petrik v Pilat |
| 2014 NY Slip Op 05314 [119 AD3d 760] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Margaret Petrik, Appellant, v Elzbieta Pilat etal., Respondents. |
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simoneof counsel; Tiffany A. Miao on the brief), for respondents.
In an action to recover damages for medical malpractice and lack of informedconsent, the plaintiff appeals, as limited by her brief, from (1) so much of an order of theSupreme Court, Richmond County (McMahon, J.), dated March 5, 2013, as granted thatbranch of the defendants' motion which was for summary judgment dismissing the causeof action alleging medical malpractice, and (2) so much of a judgment of the same courtdated May 9, 2013, as, upon the order, is in favor of the defendants and against her,dismissing the cause of action alleging medical malpractice.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the law, thatbranch of the defendants' motion which was for summary judgment dismissing the causeof action alleging medical malpractice is denied, and the order dated March 5, 2013, ismodified accordingly; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The plaintiff's decedent, who had a long history of asthma, arrived at the emergencyroom of the defendant Staten Island University Hospital on August 25, 2009, atapproximately 1:15 p.m., complaining of an asthma attack. She was treated in theemergency room by the defendant physician Elzbieta Pilat. The decedent was dischargedfrom the emergency department at approximately 6:15 p.m., and died in her home lessthan 10 hours later.
The Supreme Court should have denied that branch of the defendants' motion whichwas for summary judgment dismissing the cause of action alleging medical malpractice.Through [*2]the affirmation of their expert, thedefendants established, prima facie, that they did not depart from any accepted standardof care in their treatment of the decedent (see Castelli v Westchester County Health Care Corp., 116AD3d 898, 899 [2014]; Bey v Neuman, 100 AD3d 581, 582 [2012]). In opposition,however, the plaintiff submitted an affirmation from an expert which raised a triableissue of fact as to whether the defendants departed from accepted standards of care byfailing to obtain a complete medical history and failing to measure the decedent's peakexpiratory flows (see Martin vSiegenfeld, 70 AD3d 786, 788 [2010]; Colao v St. Vincent's Med. Ctr., 65 AD3d 660 [2009]; Feinberg v Feit, 23 AD3d517, 519 [2005]). Further, the defendants failed to establish, prima facie, that thealleged departure was not a proximate cause of the decedent's injuries (see Derdiarianv Felix Contr. Corp., 51 NY2d 308, 314-315 [1980]; Kelly v Fenton, 116 AD3d923, 924 [2014]; Stukas vStreiter, 83 AD3d 18, 25-26 [2011]). Skelos, J.P., Chambers, Lott and Duffy,JJ., concur.