Dye v. Okon

• Decision Date: 02 March 2022
• Docket Number: 2019–12089,Index No. 709016/15
• Citation: 203 A.D.3d 702,160 N.Y.S.3d 641 (Mem)
• Parties: Brenda DYE, etc., respondent, v. Stephen OKON, etc., et al., appellants, et al., defendant.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 702

160 N.Y.S.3d 641 (Mem)

Brenda DYE, etc., respondent,

v.Stephen OKON, etc., et al., appellants, et al., defendant.

2019–12089

Index No. 709016/15

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

Argued—December 2, 2021

March 2, 2022

Martin Clearwater & Bell LLP, East Meadow, NY (Gregory A. Cascino, Anthony M. Sola, and Kerona K. Samuels of counsel), for appellants.

Levine & Grossman, Mineola, NY (Brian C. Lockhart of counsel), for respondent.

ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice, the defendants Stephen Okon, John Iraj, Lawrence Carl, and Main Street Radiology at Bayside, LLC, appeal from an order of the Supreme Court, Queens County (Peter J. O'Donoghue, J.), entered September 16, 2019. The order, insofar as appealed from, denied that branch of those defendants’ motion which was for summary judgment dismissing the cause of action alleging medical malpractice insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Between 2011 and 2014, the plaintiff's decedent, Delia Dye (hereinafter the decedent), underwent multiple CT scans

of her chest at the defendant Main Street Radiology at Bayside, LLC (hereinafter Main Street Radiology), where the defendants Stephen Okon, John Iraj, and Lawrence Carl (hereinafter together with Main Street Radiology, the radiology defendants) were employed as radiologists.

The CT scans

showed multiple nodular densities in the decedent's lungs, many of which showed evidence of "branching," and some of which increased in size while others decreased in size. The radiology defendants concluded that these factors suggested small airway inflammatory disease, which they noted in their findings. They continued to recommend follow-up CT scans until March 2014, when Carl recommended, among other things, a PET scan to exclude a tumor. The PET scan was performed at Main Street Radiology. In July 2014, the decedent underwent a CT-guided fine needle aspiration of the upper lobe of her right lung, which was positive for malignant cells. She began treatment thereafter, but died in October 2015.

Prior to her death, the decedent commenced this action to recover damages for medical malpractice and lack of informed consent against the radiology defendants and the defendant Sunil Nath, her pulmonologist. Brenda Dye, as executor of the decedent's estate, was thereafter substituted as the plaintiff. After discovery, the radiology defendants moved for summary judgment dismissing the complaint insofar as asserted against them. By order dated September 16, 2019, the Supreme Court, inter alia, denied that branch of the radiology defendants’ motion which was for summary judgment dismissing the medical malpractice cause of action insofar as asserted against them. The radiology defendants appeal.

" ‘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’ " ( Hayden v. Gordon, 91 A.D.3d 819, 820, 937 N.Y.S.2d 299, quoting DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674 ). "On a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" ...