Cerniglia v. Cardiology Consultants of Westchester, P.C.

• Decision Date: 18 July 2011
• Docket Number: No. 28997/09.,28997/09.
• Citation: 36 Misc.3d 1227,959 N.Y.S.2d 88,2011 N.Y. Slip Op. 52524
• Parties: Eugene CERNIGLIA, Plaintiff, v. CARDIOLOGY CONSULTANTS OF WESTCHESTER, P.C. and Martin B. Cohen, M .D., Defendants.
• Court: New York Supreme Court

36 Misc.3d 1227

959 N.Y.S.2d 88

2011 N.Y. Slip Op. 52524

Eugene CERNIGLIA, Plaintiff,

v.CARDIOLOGY CONSULTANTS OF WESTCHESTER, P.C. and Martin B. Cohen, M .D., Defendants.

No. 28997/09.

Supreme Court, Westchester County, New York.

July 18, 2011.

Thomas E. Mehrtens, PC, Tuckahoe, for Plaintiff.

Ptashnik & Associates, New York, for Defendants.

ORAZIO BELLANTONI, J.

Defendants move, pursuant to CPLR 3212, for an order granting summary judgment and dismissing plaintiff's complaint.

The following papers were read:

Notice of Motion–Affirmation–Exhibits A–J–Affidavit of Service1–13

Affirmation in Opposition–Exhibits 1–5–Affidavit of Service14–20

Reply Affirmation–Affidavit of Service21–22

Upon the foregoing pagers, the plaintiff's motion is decided as follows:

By way of background plaintiff brings the instant action for personal injuries allegedly sustained as a result of a fall in the office of Cardiology Consultants of Westchester, P.C. (Cardiology) on July 6, 2009. Plaintiff alleges that he entered the examination room after prompting by an employee of Cardiology. After being weighed plaintiff was asked to get on the examination table. Upon attempting to get off the scale and onto the examination table plaintiff fell. The complaint alleges two causes of action, the first alleges general negligence and the second seeks damages for medical malpractice.

On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law ( see Andre v. Pomeroy, 35 N.Y.2d 361 [1974). The movant must set forth a prima facie showing of entitlement to judgment as matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact ( see Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact ( see Zuckerman v. City of New York. 49 N.Y.2d 557 [1980] ).

Defendants establish their prima facie entitlement to summary judgment on the general negligence cause of action through the deposition testimony of the parties ( see Hardman v. Long Island Urological Associates, P.C., 253 A.D.2d 849 [2nd Dept 1998] ). The deposition testimony of plaintiff states that he was not stumbling nor did he have any problems walking prior to the accident, he entered the room with the aid of his son Noel, he never asked for help getting on the scale and he never received help in prior visits from medical assistants ( see Deposition of Plaintiff at p. 42 lines 14–18, lines 21–25, p. 48 lines 23–25). Moreover the record is devoid of any evidence that the plaintiff was disoriented, or that his cognitive functions were in any way impaired.

It is a familiar principle of New York law that, in order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated from good and accepted medical practice, and that the departure was a proximate cause of the plaintiff's injuries ( see Myers v. Ferrara, 56 AD3d 78 [2nd Dept 2008] ). Consequently, on a motion for summary judgment in a medical malpractice action, the defendant physician must come forward with evidence in admissible form establishing prima facie, either that he or she did not deviate from good and accepted medical practice, or that, if there was a departure, it was not the proximate cause of the plaintiff's injuries ( see Germaine v. Yu, 49 AD3d 685 [2nd Dept 2008]; Williams v. Sahay, 12 AD3d 366 [2nd Dept 2004] ). To the extent that this action could be considered an action for medical malpractice, as the acts or omissions complained of do not involve a matter of medical science or art requiring special skills, ( see D'Elia v. Menorah Home & Hosp. for the Aged & Infim, 51 AD3d 848 [2nd Dept 2008]; Papa v. Brunswick General Hospital, 132 A.D.2d 601 [2nd Dept 1987] ), the affirmation of George Brief, M.D. is sufficient to establish, prima facie, that defendants did not deviate from good and accepted medical practice.

Since defendants have made a prima facie showing of entitlement to judgment as a matter of law ( see Zuckerman v. City of New York. 49 N.Y.2d 557 [1980] ), plaintiff must show that genuine triable issues of material fact exist in order to defeat dependants' motion ( id.)

In opposition plaintiff concedes that this action is not a case of medical malpractice, and thus, plaintiff's second cause of action is dismissed. Plaintiff alleges that defendants breached their duty of care owed to plaintiff by not assisting him off the scale. The deposition testimony of plaintiff establishes that Keith Young, Medical...