DiLorenzo v. Zaso

• Citation: 148 A.D.3d 1111,50 N.Y.S.3d 503
• Decision Date: 29 March 2017
• Docket Number: 2015-02659, Index No. 13297/11.
• Parties: Michelle DiLORENZO, respondent, v. John ZASO, etc., et al, appellants.
• Court: New York Supreme Court Appellate Division

148 A.D.3d 1111
50 N.Y.S.3d 503

Michelle DiLORENZO, respondent,
v.
John ZASO, etc., et al, appellants.

2015-02659, Index No. 13297/11.

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

March 29, 2017.

50 N.Y.S.3d 505

Gabriele & Marano, LLP, Garden City, NY (Lori A. Marano and Melissa Goldberg of counsel), for appellant John Zaso.

Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY (Christopher Simone and Gerard S. Rath of counsel), for appellants Beth Gottlieb and North Shore–Long Island Jewish Health Systems, doing business as Schneider Children's Hospital.

Weiser & Associates, LLP, New York, NY (Edward V. Spark of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER and JOSEPH J. MALTESE, JJ.

148 A.D.3d 1111

In an action to recover damages for medical malpractice, the defendant John Zaso appeals, and the defendants Beth Gottlieb and North Shore–Long Island Jewish Health Systems, doing business as Schneider Children's Hospital, separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered January 6, 2015, as denied their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is reversed, on the law, with one bill of costs payable to the appellants appearing separately and filing separate briefs, and the motion of the defendant John Zaso and the separate motion of the defendants Beth Gottlieb and North Shore–Long Island Jewish Health Systems, doing business as Schneider Children's Hospital, for summary judgment dismissing the complaint insofar as asserted against each of them are granted.

The plaintiff commenced this action against John Zaso, her former pediatrician, Beth Gottlieb, a pediatric rheumatologist, and North Shore–Long Island Jewish Health Systems, doing business as

50 N.Y.S.3d 506

Schneider Children's Hospital (hereinafter North Shore), alleging medical malpractice with respect to treatment she received from the defendants in June 2003. The plaintiff further alleged that as a result of the defendants' medical malpractice, she developed acute rheumatic fever, which was manifested by Sydenham's chorea and mitral valve regurgitation. Zaso moved for summary judgment dismissing the complaint insofar as asserted against him, and Gottlieb and North Shore separately moved for the same relief as to them. The Supreme Court denied both motions on the basis that the

148 A.D.3d 1112

plaintiff had raised triable issues of fact. Zaso appeals, and Gottlieb and North Shore separately appeal.

The elements of a medical malpractice cause of action are a deviation or departure "from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries" (Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ). A defendant moving for summary judgment in a medical malpractice case must "demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ), with respect to at least one of these elements (see Cham v. St. Mary's Hosp. of Brooklyn, 72 A.D.3d 1003, 1004, 901 N.Y.S.2d 65 ). "In pursuance of its prima facie burden of proof, the moving defendant is required to address the factual allegations set forth in the plaintiffs' bill of particulars with reference to the moving defendant's alleged acts of negligence and the injuries suffered with competent medical proof" (id. at 1005, 901 N.Y.S.2d 65 ). "[B]are conclusory assertions" by "defendants that they did not deviate from good and accepted medical practices, with no factual relationship to the alleged injury, do not establish that the cause of action has no merit so as to entitle defendants to summary judgment" (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). In opposing a motion for summary judgment in a medical malpractice case, a plaintiff needs "only to rebut the moving defendant's prima facie showing" (Stukas v. Streiter, 83 A.D.3d at 23, 918 N.Y.S.2d 176 ).

"Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" (Feinberg v. Feit, 23 A.D.3d 517, 519, 806 N.Y.S.2d 661 ). "General and conclusory allegations of medical malpractice, however, unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant physician's summary judgment motion" (Myers v. Ferrara, 56 A.D.3d 78, 84, 864 N.Y.S.2d 517 ; see Shashi v. South Nassau Communities Hosp., 104 A.D.3d 838, 839, 961 N.Y.S.2d 307 ; Goldsmith v. Taverni, 90 A.D.3d 704, 705, 935 N.Y.S.2d 39 ). Rather, the plaintiff's expert must specifically address the defense expert's allegations (see Feuer v. Ng, 136 A.D.3d 704, 707, 24 N.Y.S.3d 198 ; Berthen v. Bania, 121 A.D.3d 732, 733, 994 N.Y.S.2d 359 ; Swanson v. Raju, 95 A.D.3d 1105, 1107, 945 N.Y.S.2d 101 ; Geffner v. North Shore Univ. Hosp., 57 A.D.3d 839, 842, 871 N.Y.S.2d 617 ).

"[A] medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field" (Behar v. Coren, 21 A.D.3d 1045, 1046–1047, 803 N.Y.S.2d 629 [internal quotation marks omitted] ). However, the witness must "be possessed of the requisite skill, training, education, knowledge or

148 A.D.3d 1113

experience from which it can be assumed that the opinion rendered is reliable" (id. at 1047, 803 N.Y.S.2d 629 [internal quotation marks omitted] ). "Thus, where a physician opines outside his or her area of specialization, a foundation must be laid

50 N.Y.S.3d 507

tending to support the reliability of the opinion rendered" (id. ). Where no such foundation is laid, the expert's opinion is "of no probative value" (Feuer v. Ng, 136 A.D.3d at 707, 24 N.Y.S.3d 198 ; see Tsimbler v. Fell, 123 A.D.3d 1009, 1009–1010, 999 N.Y.S.2d 863 ; Shashi v. South Nassau Communities Hosp., 104 A.D.3d at 839, 961...