| Farrell v Herzog |
| 2014 NY Slip Op 08396 [123 AD3d 655] |
| December 3, 2014 |
| Appellate Division, Second Department |
[*1]
| Kyle Farrell, an Infant, by His Mother and NaturalGuardian, Jeanne Farrell, Respondent-Appellant, v David M. Herzog, M.D., etal., Defendants, Michael A. Schirripa, M.D., Appellant, and Nick G Faraci, M.D., et al.,Respondents. |
Gerspach Sikoscow LLP, New York, N.Y. (Mary E. Pearson of counsel), forappellant.
Kramer, Dillof, Livingston & Moore, New York, N.Y. (Matthew Gaier ofcounsel), for respondent-appellant.
Geisler Henninger & Fitzmaurice LLP, Mineola, N.Y. (Stacy Fitzmaurice ofcounsel), for respondents.
In an action to recover damages for medical malpractice, the defendant Michael A.Schirripa appeals, as limited by his brief, from so much of an order of the SupremeCourt, Kings County (Bunyan, J.), dated December 19, 2012, as denied his cross motionfor summary judgment dismissing the complaint and all cross claims insofar as assertedagainst him and the plaintiff cross-appeals from so much of the same order as grantedthose branches of the motion of the defendants Nick G. Faraci, Linda DiToro,Comprehensive Pediatrics, P.C., and Faraci, Faraci & DiToro, Physicians, P.C.,which were for summary judgment dismissing the complaint insofar as asserted againstthe defendants Nick G. Faraci, Linda DiToro, and Faraci, Faraci & DiToro,Physicians, P.C.
Ordered that the order is reversed insofar as cross-appealed from, on the law, andthose branches of the motion of the defendants Nick G. Faraci, Linda DiToro,Comprehensive Pediatrics, P.C., and Faraci, Faraci & DiToro, Physicians, P.C.,which were for summary judgment dismissing the complaint insofar as asserted againstthe defendants Nick G. Faraci, Linda DiToro, and Faraci, Faraci & DiToro,Physicians, P.C., are denied; and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff, payable by the appellant andthe respondents appearing separately and filing separate briefs.
"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" (Faicco v Golub, 91AD3d 817, 818 [2012] [internal quotation marks omitted]; see Schofield v Edward B. Borden,M.D., P.C., 117 AD3d 936 [2014]; Mancuso v Friscia, 108 AD3d 748 [2013]; Roca vPerel, 51 AD3d [*2]757, 758 [2008]; Furey v Kraft, 27 AD3d416, 417 [2006]). "Accordingly, '[a] physician moving for summary judgmentdismissing a complaint alleging medical malpractice must establish, prima facie, eitherthat there was no departure or that any departure was not a proximate cause of theplaintiff's injuries' " (DiGeronimo v Fuchs, 101 AD3d 933, 936 [2012], quotingGillespie v New York Hosp.Queens, 96 AD3d 901, 902 [2012]; see Fink v DeAngelis, 117 AD3d 894 [2014]; Garrett v University Assoc. inObstetrics & Gynecology, P.C., 95 AD3d 823, 825 [2012]; Faicco vGolub, 91 AD3d at 818; Stukas v Streiter, 83 AD3d 18, 24 [2011]). Once adefendant physician has established a prima facie case for summary judgment, the burdenthen shifts to the plaintiff to demonstrate the existence of a triable issue of fact (see Savage v Quinn, 91 AD3d748, 750 [2012]). In determining whether a triable issue of fact exists, the evidencemust be reviewed in the light most favorable to the party opposing the motion (see Stukas v Streiter, 83 AD3d18 [2011]; Martinez vKhaimov, 74 AD3d 1031 [2010]; Cerny v Williams, 32 AD3d 881, 884 [2006]; see alsoMenzel v Plotnick, 202 AD2d 558 [1994]; see generally Alvarez v ProspectHosp., 68 NY2d 320 [1986]).
Here, the defendants Nick G. Faraci, Linda DiToro, and Faraci, Faraci &DiToro, Physicians, P.C. (hereinafter collectively Faraci & DiToro) established theirprima facie entitlement to judgment as a matter of law by submitting the parties'deposition testimony, the hospital records of the plaintiff, an infant, and the affirmationof a pediatric medical expert, who, after detailing the relevant medical facts withreferences to the records and deposition testimony, stated that Faraci & DiToro hadnot deviated from the relevant standard of care in their treatment of the plaintiff, and thattheir treatment was not a cause of the plaintiff's injuries.
In opposition, the plaintiff raised a triable issue of fact by submitting the affirmationof his pediatric medical expert, who opined that Faraci & DiToro deviated from therelevant standard of care by failing to timely assume responsibility, as attendingphysicians, for the care of the plaintiff after delivery, and the adequacy of that care, andthat such deviation was a proximate cause of the plaintiff's injuries. Moreover, inopposition to Faraci & DiToro's motion, the defendant Staten Island UniversityHospital raised a triable issue of fact as to which physician had the responsibility ofdirecting the care of the plaintiff in the hospital. Thus, the Supreme Court erred inawarding summary judgment to Faraci & DiToro.
The Supreme Court properly denied the cross motion of the defendant Michael A.Schirripa for summary judgment since he failed to establish "good cause" for his failureto cross-move within the 60-day time limit set by the Supreme Court for the making ofmotions or cross motions for summary judgment (CPLR 3212 [a]; see Miceli v State Farm Mut. Auto.Ins. Co., 3 NY3d 725, 726 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]; Giuliano v 666 Old Country Rd.,LLC, 100 AD3d 960, 962 [2012]; Powers v Sculco, 89 AD3d 1075 [2011]), and this was nota situation where the issues raised by Schirripa's untimely cross motion were nearlyidentical to the codefendants' timely motion for summary judgment (see Wernicki v Knipper, 119AD3d 775 [2014]; Giambona v Hines, 104 AD3d 807 [2013]). Dillon, J.P.,Chambers, Cohen and Maltese, JJ., concur.