| Smith v Agnant |
| 2015 NY Slip Op 06426 [131 AD3d 463] |
| August 5, 2015 |
| Appellate Division, Second Department |
[*1]
| Daniel Smith, an Infant, by His Mother and NaturalGuardian, Cherricka Smith, et al., Respondents, v Guilaine Agnant, M.D., et al.,Defendants, and Lawrence Hospital, Appellant. (Appeal No. 1.) Daniel Smith et al.,Respondents, v Guilaine Agnant, M.D., et al., Defendants, and Suresh Khanna, M.D.,Appellant. (Appeal No. 2.) |
Pilkington & Leggett, P.C., White Plains, N.Y. (Michael N. Romano ofcounsel), for appellant in appeal No. 1.
Heidell, Pittoni, Murphy & Bach, LLP, White Plains, N.Y. (Daniel S. Ratnerand Daryl Paxson of counsel), for appellant in appeal No. 2.
Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John M. Daly, Eugene S.R.Pagano, Mitchell L. Gittin, and Christopher J. Lennon of counsel), for respondents inappeal No 1.
The Fitzgerald Law Firm, P.C., Yonkers, N.Y. (John M. Daly, Eugene S.R. Pagano,Mitchell L. Gittin, and Christopher J. Lennon of counsel), for respondents in appeal No.2.
In an action, inter alia, to recover damages for medical malpractice, etc., (1) thedefendant Lawrence Hospital appeals, as limited by its brief, from so much of an order ofthe Supreme Court, Westchester County (Giacomo, J.), dated March 27, 2013, as deniedits motion for summary judgment dismissing the complaint insofar as asserted against it,and (2) the defendant Suresh Khanna appeals, as limited by his brief, from so much of anorder of the same court dated October 3, 2013, as granted that branch of the plaintiffs'cross motion which was for leave to renew their opposition to his motion for summaryjudgment dismissing the complaint insofar as asserted against him, which had beengranted in the order dated March 27, 2013, and, upon renewal, in effect, vacated theoriginal determination in the prior order granting his motion for summary judgmentdismissing the complaint insofar as asserted against him and, thereupon, denied thatmotion. The appeal by the defendant Lawrence Hospital from the order dated March 27,2013, brings up for review so much of the order dated October 3, 2013, as, uponreargument, adhered to so much of the original determination in the order dated March27, 2013, as denied those branches of its motion [*2]which were for summary judgment dismissing the firstcause of action, which alleges medical malpractice, and the third cause of action, whichalleges derivative injuries, insofar as asserted against it (see CPLR 5517 [b]).
Ordered that the appeal from the order dated March 27, 2013, is dismissed; and it isfurther,
Ordered that the order dated October 3, 2013, is modified, on the law, by deleting theprovision thereof, upon reargument, adhering to so much of the original determination inthe order dated March 27, 2013, as denied that branch of the motion of the defendantLawrence Hospital which was for summary judgment dismissing so much of the firstcause of action as seeks recovery against it based upon a theory of vicarious liability, andsubstituting therefor a provision, upon reargument, vacating that portion of the originaldetermination and, thereupon, granting that branch of the motion; as so modified, theorder dated October 3, 2013, is affirmed insofar as appealed from and reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiffs, payable by the defendantSuresh Khanna.
The appeal by the defendant Lawrence Hospital from so much of the order datedMarch 27, 2013, as denied those branches of its motion which were for summaryjudgment dismissing the second and fourth causes of action insofar as asserted against itmust be dismissed as academic in light of the determination in the order dated October 3,2013, which, upon reargument, in effect, vacated those provisions of the order datedMarch 27, 2013, and, thereupon, granted those branches of the motion.
Daniel Smith (hereinafter the infant plaintiff) was born on November 2, 2004, andwas later diagnosed with, among other things, global developmental delays, cerebralpalsy, and seizure disorder. The infant plaintiff by his mother, Cherricka Smith(hereinafter the mother), and the mother suing derivatively, commenced this actionagainst the physician Guilaine Agnant, who delivered the infant plaintiff, the physicianHamid Mootabar, a maternal-fetal medicine specialist who provided ultrasound servicesprior to the delivery, the physician Suresh Khanna, a neonatologist who treated the infantplaintiff after the delivery, and Lawrence Hospital (hereinafter the hospital), where theinfant plaintiff was delivered and where Khanna treated him before discharging him onDecember 10, 2004. The first cause of action alleged medical malpractice.
The defendants separately moved for summary judgment dismissing the complaintinsofar as asserted against each of them. In an order dated March 27, 2013, the SupremeCourt granted Khanna's motion on the ground that the affirmation of the plaintiffs' expertwas not sufficient to raise a triable issue of fact in opposition to Khanna's prima facieshowing of entitlement to judgment as a matter of law. In the same order, the courtdenied the hospital's motion.
The hospital moved for leave to reargue its motion and the plaintiffs cross-moved,among other things, for leave to renew their opposition to Khanna's summary judgmentmotion. In an order dated October 3, 2013, the Supreme Court, upon reargument, grantedthose branches of the hospital's motion which were for summary judgment dismissing thesecond and fourth causes of action insofar as asserted against it, and otherwise adhered tothe original determination with respect to the hospital's motion. In addition, the courtgranted that branch of the plaintiffs' cross motion which was for leave to renew, and,upon renewal, denied Khanna's motion for summary judgment dismissing the complaintinsofar as asserted against him.
The hospital and Khanna separately appeal. We modify the order dated October 3,2013, so as to grant that branch of the hospital's motion which was for summaryjudgment dismissing so much of the first cause of action as seeks recovery against itbased upon a theory of vicarious liability.
" 'In general, a hospital may not be held vicariously liable for the malpracticeof a [*3]private attending physician who is not anemployee, and may not be held concurrently liable unless its employees committedindependent acts of negligence' " (Barrocales v New York Methodist Hosp., 122 AD3d 648,650 [2014], quoting Toth vBloshinsky, 39 AD3d 848, 850 [2007]). Here, the hospital demonstrated itsprima facie entitlement to judgment as a matter of law dismissing so much of thecomplaint as alleged that it was vicariously liable for the alleged medical malpractice ofthe defendant physicians, and the plaintiff failed to raise a triable issue of fact inopposition (see Muslim vHorizon Med. Group, P.C., 118 AD3d 681, 683 [2014]). Accordingly, uponreargument, the Supreme Court should have vacated so much of the originaldetermination as denied that branch of the hospital's motion which was for summaryjudgment dismissing so much of the first cause of action as seeks recovery against itbased upon a theory of vicarious liability and, thereupon, granted that branch of thehospital's motion.
However, contrary to the hospital's contention, the pleadings adequately set forthallegations of direct liability against the hospital based upon the acts and omissions of itsown personnel, and that branch of the hospital's motion which was for summaryjudgment dismissing so much of the first cause of action as was based upon suchallegations was properly denied. Contrary to the hospital's contention, the plaintiffs'allegations of direct liability were not improperly asserted as an alternative theory for thefirst time in opposition to the hospital's summary judgment motion (cf. Dolan v Halpern, 73 AD3d1117, 1119 [2010]; Golubov v Wolfson, 22 AD3d 635, 636 [2005]). Moreover,the plaintiffs raised triable issues of fact in opposition to the hospital's prima facieshowing with regard to the issue of its direct liability. For the same reason, the SupremeCourt properly denied that branch of the hospital's motion which was for summaryjudgment dismissing the third cause of action, which alleges derivative injuries, insofaras asserted against it.
With respect to Khanna's appeal, as Khanna acknowledges, the question of whetherto grant that branch of the plaintiffs' cross motion which was for leave to renew wasaddressed to the sound discretion of the Supreme Court (see Biscone v JetBlue AirwaysCorp., 103 AD3d 158, 180 [2012]; HSBC Bank USA, N.A. v Halls, 98 AD3d 718, 720[2012]), and, under the circumstances of this case, the court providently exercised itsdiscretion in granting leave to renew (see generally Central Mtge. Co. v McClelland, 119 AD3d885, 886 [2014]).
"[O]n a motion for summary judgment dismissing the complaint in a medicalmalpractice action, the defendant has the initial burden of establishing the absence of anydeparture from good and accepted medical practice or that the plaintiff was not injuredthereby" (Duvidovich vGeorge, 122 AD3d 666, 666 [2014]; see Wexelbaum v Jean, 80 AD3d 756, 757 [2011]). Oncesuch a showing is made, the burden shifts to the plaintiff to produce evidentiary proof inadmissible form demonstrating the existence of a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). "General allegations that are conclusoryand unsupported by competent evidence tending to establish the essential elements ofmedical malpractice are insufficient to defeat summary judgment" (DiMitri vMonsouri, 302 AD2d 420, 421 [2003]).
Here, Khanna established his prima facie entitlement to judgment as a matter of lawdismissing the complaint insofar as asserted against him by submitting expert evidenceindicating that he did not depart from good and accepted standards of medical care in histreatment of the infant plaintiff and, therefore, his actions did not cause the infantplaintiff's alleged injuries. However, the plaintiffs' expert evidence submitted inopposition was sufficient to raise triable issues of fact as to whether Khanna committedsuch a departure which proximately caused the infant plaintiff's injuries (see e.g. Farrell v Herzog, 123AD3d 655, 657 [2014]; Kunic v Jivotovski, 121 AD3d 1054, 1055 [2014]).Accordingly, upon renewal, the Supreme Court properly denied Khanna's motion forsummary judgment dismissing the complaint insofar as asserted against him. Mastro,J.P., Rivera, Dickerson and Maltese, JJ., concur.