| Capobianco v Marchese |
| 2015 NY Slip Op 01600 [125 AD3d 914] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| Laura Capobianco, Respondent, v NicholasMarchese, D.P.M., et al., Appellants, et al., Defendants. |
Martin Clearwater & Bell, LLP, New York, N.Y. (Arjay G. Yao, Jeffrey A.Shor, Ryan M. Donihue, and Iryna Krauchanka of counsel), for appellant NicholasMarchese.
Kaufman Borgeest & Ryan, LLP, Valhalla, N.Y. (Jacqueline Mandell andDavid Bloom of counsel), for appellants Robert J. Gottlieb, D.P.M., P.C., Robert J.Gottlieb, David E. Negron, and Maria N. Pecora.
Castro & Trodden, LLC, Smithtown, N.Y. (Brian A. Trodden of counsel), forrespondent.
In an action, inter alia, to recover damages for podiatric malpractice, the defendantNicholas Marchese appeals from so much of an order of the Supreme Court, SuffolkCounty (Asher, J.), dated April 12, 2013, as denied his motion for summary judgmentdismissing the complaint insofar as asserted against him, and the defendants Robert J.Gottlieb, D.P.M., P.C., Robert J. Gottlieb, David E. Negron, and Maria N. Pecora,separately appeal from so much of the same order as denied their motion for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with one billof costs payable to the appellants appearing separately and filing separate briefs, themotions are granted, and the complaint is dismissed insofar as asserted against thedefendants Nicholas Marchese, Robert J. Gottlieb, D.P.M., P.C., Robert J. Gottlieb,David E. Negron, and Maria N. Pecora.
The plaintiff sustained injuries to her left foot in June 2006 and sought podiatrictreatment from the defendant Nicholas Marchese. The plaintiff complained of pain andweakness in her foot, with numbness in her toes. Marchese diagnosed a sprain and madeno findings that caused him to suspect a fracture. He took X rays of the plaintiff's footthat did not show a fracture. At an August 10, 2006, visit with Marchese, the plaintiffreported that her pain had shifted slightly. Marchese ordered a magnetic resonanceimaging (hereinafter MRI) report based on the plaintiff's new symptoms, and he receivedthe report on August 15, 2006. Based on the report, he determined that the plaintiff's painwas not the result of a fracture. He did not consider ordering a CT scan, as it would notmore fully characterize the extent of a fracture than an MRI. Marchese diagnosed the[*2]plaintiff with a bone contusion.
The plaintiff subsequently went to the office of the defendants Robert J. Gottlieb,David E. Negron, and Maria N. Pecora for a second opinion (hereinafter, together withMarchese, the defendants). X rays taken at that office and a second MRI showed nofractures. There was no indication for a CT scan until July 10, 2007, when the plaintiffvisited Negron with new symptoms, including sharp cramping of the lateral midfoot andpain in the dorsal margin anterior process over the anterior calcaneal process. Negronordered a CT scan, which was performed on July 14, 2007. The results of the scanindicated an old avulsion fracture arising from the distal lateral aspects of the calcaneus.The plaintiff had surgery in November 2007 to remove a bone fragment from her leftfoot.
The Supreme Court erred in denying those branches of the defendants' respectivemotions which were for summary judgment dismissing the podiatric malpractice causesof action. In order to establish their prima facie entitlement to judgment as a matter oflaw, the defendants were required to show either that there was no departure fromaccepted practice, or that any departure was not a proximate cause of the plaintiff'sinjuries (see Williams v BayleySeton Hosp., 112 AD3d 917, 918 [2013]; Arocho v D. Kruger, P.A., 110 AD3d 749, 750 [2013]; Khosrova v Westermann, 109AD3d 965 [2013]). Here, Gottlieb, Negron, and Pecora submitted the expertaffidavit of Craig Campbell, who stated within a reasonable degree of podiatric certaintythat the care rendered to the plaintiff by those defendants was in accordance with goodand accepted practice, and did not proximately cause or contribute to any injuries.Campbell stated that it was unnecessary for those defendants to have rendered anyadditional treatment to the plaintiff, because the radiologic and diagnostic studies andexaminations by them did not indicate that there was a fracture of the plaintiff's left footor ankle until July 2007. There was no clinical or diagnostic evidence that the plaintiffhad a fracture prior to July 2007. Campbell stated that it was appropriate for thosedefendants to rely upon the MRI reports, which showed no evidence of a fracture in theplaintiff's left foot. Campbell indicated why a CT scan was not indicated and an MRI wassufficient to diagnose a fracture, and set forth how each of those defendants' care andtreatment of the plaintiff met the relevant standard of care. Campbell's affidavit wassufficient to establish those defendants' prima facie entitlement to judgment as a matterof law regarding the podiatric malpractice causes of action by showing that they did notdepart from good and accepted practice in their care and treatment of the plaintiff, andthat, in any event, their care and treatment did not proximately cause the plaintiff'sinjuries (see Kelley vKingsbrook Jewish Med. Ctr., 100 AD3d 600 [2012]; Wilkins v Khoury, 72 AD3d1067 [2010]).
Similarly, Marchese submitted the expert affidavit of Russell Caprioli, who statedwithin a reasonable degree of podiatric certainty that Marchese met the standard of careat all times in the treatment he rendered to the plaintiff from June 15, 2006, until October27, 2006. He stated that it was unnecessary for Marchese to render any treatment otherthan what was already rendered to the plaintiff, because the radiology films, Marchese'sexamination of the plaintiff, and the plaintiff's complaints did not indicate a fracture tothe plaintiff's left foot or ankle. Caprioli set forth how Marchese's care and treatment metthe relevant standard of care, why a CT scan was not indicated, and why an MRI was amore than appropriate diagnostic tool to diagnose the presence of an avulsion fracture.He stated that Marchese did not depart from accepted practice, and did not cause orcontribute to the plaintiff's claimed injuries. His affidavit was sufficient to establishMarchese's prima facie entitlement to judgment as a matter of law with respect to thepodiatric malpractice causes of action.
The plaintiff failed to raise a triable issue of fact in opposition to the defendants'prima facie showing. The plaintiff submitted an unsigned and redacted expert affidavit inopposition to the motion. An unsigned and redacted physician's affidavit should not beconsidered in opposition to a motion for summary judgment where the plaintiff does notoffer an explanation for the failure to identify the expert by name and does not tender anunredacted affidavit for in camera review. Such an affidavit is insufficient to raise atriable issue of fact (see Francev Packy, 121 AD3d 836 [2014]; Derrick v North Star Orthopedics, PLLC, 121 AD3d 741[2014]; Rose v Horton Med.Ctr., 29 AD3d 977, 978-979 [2006]). The plaintiff did not submit an unredactedaffidavit for the court to review, and did not offer an explanation for her failure toidentify the expert by name.
[*3] In any event,the affidavit of the plaintiff's expert was conclusory, as he stated that a CT scan would bea better and more accurate tool than an MRI to diagnose an avulsion fracture, but did notexplain the reasons for this opinion. Furthermore, the expert stated only that an earlierdiagnosis may have allowed the fracture to heal without surgery, which is merespeculation. Therefore, even if the affidavit were admissible, it would not have beensufficient to raise a triable issue of fact (see Barrocales v New York Methodist Hosp., 122 AD3d648 [2014]; Ahmed vPannone, 116 AD3d 802, 806 [2014]; Khosrova v Westermann, 109AD3d at 967).
Furthermore, the Supreme Court erred in denying those branches of the defendants'respective motions which were for summary judgment dismissing the causes of actionalleging lack of informed consent and negligent hiring and supervision. The defendantsestablished their prima facie entitlement to judgment as a matter of law dismissing thecause of action alleging lack of informed consent by establishing that there was noallegation by the plaintiff that her injuries were due to an affirmative violation of herphysical integrity (see Brady vWestchester County Healthcare Corp., 78 AD3d 1097, 1099 [2010]). Theyestablished their prima facie entitlement to judgment as a matter of law dismissing thecause of action alleging negligent hiring and supervision by establishing that the plaintiffhad failed to identify any employee allegedly negligently hired or supervised (see Sita v Long Is. Jewish-HillsideMed. Ctr., 22 AD3d 743 [2005]). The plaintiff failed to raise a triable issue offact in opposition, as she never addressed these causes of action in her opposition papers,and did not specifically oppose those branches of the defendants' motions which were forsummary judgment dismissing them (see Tom v Sundaresan, 107 AD3d 479 [2013]; Brady v Westchester CountyHealthcare Corp., 78 AD3d 1097 [2010]).
Accordingly, the Supreme Court erred in denying the defendants' respective motionsfor summary judgment dismissing the complaint insofar as asserted against each ofthem.
The plaintiff's challenge to the admissibility of uncertified medical records is raisedfor the first time on appeal and is not properly before this Court (see Perez v City of New York,104 AD3d 661 [2013]; Marinkovic v IPC Intl. of Ill., 95 AD3d 839 [2012]; Matter of Mercury Ins. Group vOcana, 46 AD3d 561 [2007]). Rivera, J.P., Balkin, Duffy and LaSalle, JJ.,concur. [Prior Case History: 2013 NY Slip Op 30786(U).]