| Feteha v Scheinman |
| 2019 NY Slip Op 01199 [169 AD3d 871] |
| February 20, 2019 |
| Appellate Division, Second Department |
[*1]
| Randi Feteha, Appellant, v Marcel Scheinman,Respondent. |
Laffan & Laffan, LLP, Mineola, NY (Maura V. Laffan of counsel), for appellant.
Marulli, Lindenbaum & Tomaszewski, LLP, New York, NY (Aleksandr Gelerman and JohnTomaszewski of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from ajudgment of the Supreme Court, Queens County (Robert L. Nahman, J.), entered November 25,2015. The judgment, upon the granting of the defendant's motion pursuant to CPLR 4401, made at theclose of the plaintiff's case, for judgment as a matter of law dismissing the complaint, is in favor of thedefendant and against her dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff commenced this action sounding in medical malpractice to recover damages for injuriesshe sustained arising from an elective brachioplasty surgery performed by the defendant. At the close ofthe plaintiff's case at a jury trial, the Supreme Court granted the defendant's motion pursuant to CPLR4401 for judgment as a matter of law dismissing the complaint. Judgment was entered accordingly,dismissing the complaint. The plaintiff appeals.
To establish a prima facie case of liability in a medical malpractice action, "a plaintiff must provethat the defendant deviated or departed from accepted community standards of practice and that suchdeparture was a proximate cause of the plaintiff's injuries" (Colletti v Deutsch, 150 AD3d 1196, 1197 [2017] [internal quotationmarks omitted]; see Keun Young Kim vLenox Hill Hosp., 156 AD3d 774 [2017]; Kerrins v South Nassau Communities Hosp., 148 AD3d 795 [2017]; Leavy v Merriam, 133 AD3d 636[2015]). " 'Expert testimony is necessary to prove a deviation from accepted standards ofmedical care and to establish proximate cause' " (Dray v Staten Is. Univ. Hosp., 160 AD3d 614, 618 [2018], quoting Nichols v Stamer, 49 AD3d 832, 833[2008]; see Lyons v McCauley, 252 AD2d 516, 517 [1998]).
To succeed on a motion for judgment as a matter of law pursuant to CPLR 4401, a defendant hasthe burden of showing that there is no rational process by which the jury could find in favor of theplaintiff and against the moving defendant (see Szczerbiak v Pilat, 90 NY2d 553 [1997]). Indetermining whether the defendant has met this burden, a court must accept the plaintiff's evidence astrue and accord the plaintiff the benefit of every favorable inference which can reasonably be drawnfrom the evidence presented at trial (see id. at 556; Figueroa v City of New York, 101 AD3d 674, 674 [2012]; Liounis v New York City Tr. Auth., 92AD3d 643, 643 [2012]; Tapia v Dattco,Inc., 32 AD3d 842, 844 [2006]).
We agree with the Supreme Court's granting of the defendant's motion pursuant to CPLR 4401 forjudgment as a matter of law dismissing the complaint. Upon accepting the plaintiff's evidence as trueand according the plaintiff the benefit of every favorable inference, the court was confronted with theadmissions of the plaintiff's medical expert who indicated, during her cross-examination testimony, thatthe posterior approach to brachioplasty, the procedure used by the defendant, while not the expert'spreferred method, is an accepted procedure and is within the standard of care. This was repeatedduring recross examination when the plaintiff's expert acknowledged that the posterior brachioplasty isan accepted procedure in the field of plastic surgery. The plaintiff's expert rendered no testimonyestablishing the manner in which the defendant's conduct deviated from the accepted standard of care,as her testimony centered around her preferred method for brachioplasty, which simply differed fromthe defendant's approach.
"A doctor may be liable only if the doctor's treatment decisions do not reflect his or her own bestjudgment, or fall short of the generally accepted standard of care" (Nestorowich v Ricotta, 97NY2d 393, 399 [2002]). Here, the plaintiff's medical expert admitted multiple times that the defendantperformed an accepted brachioplasty surgery that falls within the standard of care for such procedures.Such admissions were fatal to the plaintiff's establishment of a prima facie case on the issue of liabilityfor medical malpractice (see Nestorowich v Ricotta, 97 NY2d at 399; Davis v Patel,287 AD2d 479 [2001]; Ibguy v State of New York, 261 AD2d 510 [1999]).
We do not address the plaintiff's remaining contentions, as they involve matter dehors the record(see Schwarz v Margie, 62 AD3d780 [2009]; Mendoza v Plaza Homes,LLC, 55 AD3d 692 [2008]), or are unpreserved for appellate review (see SCG Architects v Smith, Buss &Jacobs, LLP, 100 AD3d 619 [2012]). Scheinkman, P.J., Dillon, LaSalle and BrathwaiteNelson, JJ., concur.