Ahmed v. Pannone

• Decision Date: 16 April 2014
• Citation: 2014 N.Y. Slip Op. 02553,984 N.Y.S.2d 104,116 A.D.3d 802
• Parties: Rafia AHMED, etc., respondent, v. John PANNONE, etc., et al., appellants, et al., defendant.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 802
984 N.Y.S.2d 104
2014 N.Y. Slip Op. 02553

Rafia AHMED, etc., respondent,
v.
John PANNONE, etc., et al., appellants, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

April 16, 2014.

[984 N.Y.S.2d 105]

Patrick F. Adams, P.C., New York, N.Y. (Gregory M. Maurer of counsel), for appellants John Pannone and Nephrology Associates of Brooklyn.

Wilser Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Judy C. Selmeci and Lori R. Semlies of counsel), for appellants Carl Tack and Shore Road Radiology Associates, P.C., and for defendant Lutheran Medical Center.

David L. Taback, P.C., New York, N.Y. (Jennifer A. Fleming of counsel), for respondent.

THOMAS A. DICKERSON, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and SYLVIA O. HINDS–RADIX, JJ.

[984 N.Y.S.2d 106]

In an action to recover damages for medical malpractice, lack of informed consent, and wrongful death, etc., the defendants John Pannone and Nephrology Associates of Brooklyn appeal, and the defendants Carl Tack and Shore Road Radiology Associates, P.C., separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated May 16, 2012, as granted the plaintiff's motion for leave to reargue her opposition to those branches of their separate motions which were for summary judgment dismissing the causes of action alleging medical malpractice and wrongful death, and her derivative cause of action, insofar as asserted against them, which had been granted in an order of the same court (Rosenberg, J.), dated November 7, 2011, and, upon reargument, in effect, vacated those portions of the order dated November 7, 2011, which granted those branches of the separate motions, and thereupon denied those branches of the separate motions.

ORDERED that the order dated May 16, 2012, is reversed, on the law, with one bill of costs payable to the appellants appearing separately and filing separate briefs, the plaintiff's motion for leave to reargue is denied, and those portions of the order dated November 7, 2011, which granted those branches of the separate motions which were for summary judgment dismissing the causes of action alleging medical malpractice and wrongful death, and the derivative cause of action, insofar as asserted against them are reinstated.

The plaintiff is the widow of the decedent, Nafis Ahmed, and the executor of his estate. The decedent, who was a surgeon, had diabetes, high blood pressure, and renal insufficiency. According to the plaintiff, in 2004, the decedent began experiencing problems with his legs. The decedent's physician, nonparty Dr. Kang, recommended that the decedent undergo an angiogram, to evaluate whether the decedent's kidney function was compromised. Kang recommended that the defendant Dr. Carl Tack perform the angiogram. The defendant Dr. John Pannone, a nephrologist, was to be involved in the procedure to, among other things, “protect the [decedent's] kidney.” On August 22, 2004, the decedent was admitted to the defendant Lutheran Medical Center for the angiogram. The decedent's condition following the first angiogram “wasn't bad.” He was able to walk, sit, and use the bathroom on his own. Additionally, after the first angiogram, the decedent's creatinine level, which can be indicative of a risk of renal failure, was normal to mildly elevated, and had actually fallen slightly since the decedent was admitted to the hospital. The following day, Pannone indicated that Kang wanted the decedent to have a second angiogram, “to get the other kidney done.” According to the plaintiff, the decedent originally stated that he preferred to undergo an additional angiogram “after a month, maybe.” However, subsequently, the decedent agreed to remain in the hospital and undergo a second angiogram to “get it done with and put it behind” him. Following the second angiogram, the decedent felt pain in his calf and his toes, and he could not stand. He complained of a burning sensation. The decedent was discharged two days following the second procedure. Thereafter, the decedent “got very sick.” He was vomiting and passing dark urine. It is undisputed that, in September 2004, the decedent went to the hospital, where it was discovered that he had acute renal failure, demonstrated by, among other things, elevated creatinine levels. The decedent began dialysis treatment. In 2007, the decedent underwent a kidney transplant

[984 N.Y.S.2d 107]

, and subsequently died as a result of complications.

The plaintiff and the decedent originally commenced this action in 2006. The plaintiff amended the complaint in 2008 to reflect the decedent's death and to assert a cause of action to recover damages for wrongful death. The defendants Tack and Shore Road Radiology Associates, P.C. (hereinafter together the Radiology defendants), together with the defendant Lutheran Medical Center (hereinafter Lutheran), moved for summary judgment dismissing the complaint insofar as asserted against them. Thereafter, the defendants Pannone and Nephrology Associates of Brooklyn (hereinafter together the Nephrology defendants) separately moved for summary judgment dismissing the complaint insofar as asserted against them. The plaintiff opposed the separate motions, relying on two expert affirmations. Both of the plaintiff's experts concluded, with a reasonable degree of medical certainty, that the decedent's kidney failure was caused by the defendants' malpractice in performing the second, contraindicated, intravenous contrast angiogram, resulting in nephrotoxicity.

In an order dated November 7, 2011, the Supreme Court (Rosenberg, J.), granted the defendants' separate motions. The court concluded that the defendants established their prima facie entitlement to judgment as a matter of law, and that, in opposition, the plaintiff's expert affirmations were insufficient to raise a triable issue of fact.

The plaintiff moved for leave to reargue her opposition to those branches of the defendants' separate motions which were to dismiss the causes of action alleging medical malpractice and wrongful death, as well as the derivative cause of action, insofar as asserted against the Pannone defendants and the Radiology defendants. The plaintiff expressly declined to seek reargument concerning the cause of action premised on lack of informed consent and with respect to any claims against Lutheran.

In the order appealed from, the Supreme Court (Steinhardt, J.) granted the plaintiff's motion for leave to reargue, and, upon reargument, in effect, vacated so much of the order dated November 7, 2011, as granted those branches of the defendants' motions, and thereupon denied the subject branches of the defendants' separate motions. The court determined that the defendants established their prima facie entitlement to judgment as a matter of law. However, the court further concluded that, in opposition, through her expert affirmations, the plaintiff succeeded in raising a triable issue of fact. The court concluded that, contrary to the determination in the November 7, 2011, order, the plaintiff's expert affirmations were not conclusory. The Nephrology defendants and the Radiology defendants separately appeal. We reverse.

“A motion for leave to reargue ‘shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion’ ” ( Grimm v. Bailey, 105 A.D.3d 703, 704, 963 N.Y.S.2d 277, quoting CPLR 2221[d][2]; see Matter of American Alternative Ins. Corp. v. Pelszynski, 85 A.D.3d 1157, 1158, 926 N.Y.S.2d 640). “While the determination to grant leave to reargue a motion lies within the sound discretion of the court, a motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented” (

[984 N.Y.S.2d 108]

Matter of Anthony J. Carter, DDS, P.C. v. Carter, 81 A.D.3d 819, 820, 916 N.Y.S.2d 821 [citations and internal quotations omitted] ).

Here, the Supreme Court improvidently exercised its discretion in granting reargument, as the plaintiff failed to demonstrate that the court overlooked or misapprehended any matters of fact or law in determining the defendants' separate motions for summary judgment.

“ ‘The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury’ ” ( Poter v. Adams, 104 A.D.3d 925, 926, 961 N.Y.S.2d 556, quoting DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674;see Hayden v. Gordon, 91 A.D.3d 819, 820, 937 N.Y.S.2d 299;Guzzi v. Gewirtz, 82 A.D.3d 838, 918 N.Y.S.2d 552). “On a motion for summary judgment, a defendant physician ‘must make a prima facie showing that there was no departure from good and accepted medical practice or that the plaintiff was not injured thereby’ ” ( Poter v. Adams, 104 A.D.3d at 926, 961 N.Y.S.2d 556, quoting Stukas v. Streiter, 83 A.D.3d 18, 24, 918 N.Y.S.2d 176;see Gillespie v. New York Hosp. Queens, 96 A.D.3d 901, 902, 947 N.Y.S.2d 148;Healy v. Damus, 88 A.D.3d 848, 849, 931 N.Y.S.2d 243;Heller v. Weinberg, 77 A.D.3d 622, 622–623, 909 N.Y.S.2d 477). “Once a defendant has made such a showing, the burden shifts to the plaintiff to ‘submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician’ ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ), but only as to those elements on which the defendant met the prima facie burden” ( Poter v. Adams, 104 A.D.3d at 926, 961 N.Y.S.2d 556;see Stukas v. Streiter, 83 A.D.3d at 23–24, 918 N.Y.S.2d 176;Gillespie v. New York Hosp. Queens, 96 A.D.3d at 902, 947 N.Y.S.2d 148;Garrett v. University Assoc. in Obstetrics & Gynecology, P.C., 95 A.D.3d 823, 825,...