Drooker v. South Nassau Communities Hosp.

• Decision Date: 02 January 1998
• Parties: , 1998 N.Y. Slip Op. 98,037 Leatrice DROOKER, as Administratrix of the Estate of Milton Drooker, Deceased, Plaintiff, v. SOUTH NASSAU COMMUNITIES HOSPITAL et al., Defendants.
• Court: New York Supreme Court

Page 169

669 N.Y.S.2d 169

175 Misc.2d 181, 1998 N.Y. Slip Op. 98,037

Leatrice DROOKER, as Administratrix of the Estate of Milton Drooker, Deceased, Plaintiff, v. SOUTH NASSAU COMMUNITIES HOSPITAL et al., Defendants.

Supreme Court, Nassau County.

Jan. 2, 1998.

Podlofsky & Orange, New York City, for Andrew M. Goldstein, defendant.

Bartlett, McDonough, Bastone & Monaghan, L.L.P., Mineola, for South Nassau Communities Hospital, defendant.

Dubois, Billig, Loughlin, Conaty & Weissman, Rock Hill, for Lawrence M. Kleinman and another, defendants.

Furey, Furey, Lapping, Demaria & Petrozzo, P.C., Hempstead, for Julius A. Bazan, defendant.

Shayne, Dachs, Stanisci, Corker & Sauer, Mineola, for plaintiff.

BRUCE D. ALPERT, Justice.

In this application defendant, Andrew M. Goldstein, M.D., moves for summary judgment pursuant to CPLR 3212.

The instant application is supported, inter alia, by a copy of the amended summons and complaint, the answer interposed by the movant, portions of testimony taken at an examination before trial of co-defendant, Lawrence M. Kleinman, M.D., and an affidavit authored by the movant in which he renders opinions of an exculpatory nature.

"As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387)." (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

Neither the plaintiff nor any of the co-defendants challenge the sufficiency of the movant's showing. As a consequence thereof, the evidentiary burden has shifted from the moving party to those litigants that would be affected by a grant of the relief sought (see, GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965, 498 N.Y.S.2d 786, 489 N.E.2d 755).

"We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v. Muller Constr. Co., 46 N.Y.2d 276, 281-282, 413 N.Y.S.2d 309, 385 N.E.2d 1238; Fried v. Bower & Gardner, 46 N.Y.2d 765, 767, 413 N.Y.S.2d 650, 386 N.E.2d 258; Platzman v. American Totalisator Co., 45 N.Y.2d 910, 912, 411 N.Y.S.2d 230, 383 N.E.2d 876; Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., 32 N.Y.2d 285, 290, 344 N.Y.S.2d 925, 298 N.E.2d 96)." (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Neither the plaintiff nor any of the co-defendants have offered evidence tending to demonstrate the presence of any material triable factual issues concerning Dr. Goldstein's asserted responsibility, in whole or in part, for the injuries allegedly sustained by plaintiff's intestate. Thus, the movant's entitlement to summary disposition stands unchallenged.

While the plaintiff took no position with respect to the movant's entitlement to the relief sought, and in fact acknowledges an inability to make a contrary showing, counsel has raised what appears to be an issue of first impression which concerns the remaining defendants' opportunity to obtain the limited liability benefits of Article 16 of the CPLR based on the movant's purported professional negligence.

By Order dated September 19, 1997, this Court afforded notice of its intention to consider the issue thus raised, and adjourned the instant application, sua sponte, to allow for the submission of further papers so as to foster a full and fair opportunity to contest the matter on its merits.

The defendants that advocate against a limitation of the opportunity to seek refuge under Article 16's penumbra predicate their arguments on two separate, but related bases.

While defendant, South Nassau Communities Hospital, posits that it has no obligation to assert its rights under Article 16 until the time of trial, counsel for defendant, Julius A. Bazan, M.D., contends that as the right to seek contribution against the movant may be extended well beyond entry of judgment against one or more of the remaining defendants, proof of Dr. Goldstein's culpability may be similarly deferred.

Each argument, when reduced to essential elements, is based on timing; that in the view of counsel resolution of the issue raised would be premature at this juncture. For the reasons hereinafter articulated, this Court disagrees.

The assertion that in this context a defendant may await the trial of an action to assert its rights under Article 16 (or entry of judgment to initiate an action for contribution) fails to recognize the function served by a motion brought pursuant to CPLR 3212....