Erkomaishvili v. Volovoy

• Decision Date: 26 August 2020
• Docket Number: 2017–09734,Index No. 505057/13
• Citation: 186 A.D.3d 799,127 N.Y.S.3d 803 (Mem)
• Parties: Irma ERKOMAISHVILI, etc., appellant, v. Vitaly VOLOVOY, etc., et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 799

127 N.Y.S.3d 803 (Mem)

Irma ERKOMAISHVILI, etc., appellant,

v.Vitaly VOLOVOY, etc., et al., respondents, et al., defendants.

2017–09734

Index No. 505057/13

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

Argued - February 28, 2020

August 26, 2020

Hasapidis Law Offices, South Salem, N.Y. (Annette G. Hasapidis of counsel), for appellant.

Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., New York, N.Y. (Marci D. Mitkoff of counsel), for respondents.

WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated August 2, 2017. The order granted the motion of the defendants Vitaly Volovoy and Multi Care Medical NY, PLLC, for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against, among others, the defendant physician Vitaly Volovoy and his employer, the defendant Multi Care Medical NY, PLLC (hereinafter together the MCM defendants), inter alia, to recover damages for medical malpractice, alleging that the failure to admit the plaintiff's decedent, Meri Erkomaishvili, to a hospital for emergency care was a proximate cause of her death. The decedent was examined by Volovoy in his office on May 29, 2013, presenting with symptoms of chronic dry cough, shortness of breath on moderate exertion, and weight loss of approximately 18 pounds over the preceding three months. Volovoy ordered an EKG, a chest X ray, blood chemistry, and "CBC," and prescribed ampicillin. Volovoy examined the decedent in his office again on May 31, 2013, and ordered a chest CT scan, which took place the same day, a pulmonary consult, and a follow-up visit in two weeks. The decedent, however, suffered a cardiac arrest on June 1, 2013, and was rushed to a hospital, where she died on June 22, 2013. The CT scan performed on May 31, 2013, but reviewed after the decedent's cardiac arrest, was read to indicate masses on her lung, spine, and liver that were "highly suspicious for metastatic deposits." The MCM defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In an order dated August 2, 2017, the Supreme Court granted the motion. The plaintiff appeals.

" ‘Medical malpractice actions require proof that the defendant physician deviated or departed from the accepted community standards of practice, and that such deviation ... was a proximate cause of the plaintiff's injuries’ " ( Dixon v. Chang, 163 A.D.3d 525, 526, 79 N.Y.S.3d 648, quoting Bongiovanni v. Cavagnuolo, 138 A.D.3d 12, 15, 24 N.Y.S.3d 689 ). Thus, in moving for summary judgment dismissing a complaint alleging malpractice claims, a defendant doctor "must establish, prima facie, either that there was no departure or that any departure was not a proximate cause of the plaintiff's injuries" ( Matthis v. Hall, 173 A.D.3d 1162, 1163, 104 N.Y.S.3d 680 ).

"If such a showing has been made, ‘a plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a triable issue of fact’ " ( Noble v. Kingsbrook Jewish Med. Ctr., 168 A.D.3d 1077, 1079, 92 N.Y.S.3d 373, quoting Deutsch v. Chaglassian, 71 A.D.3d 718, 719, 896 N.Y.S.2d 431 ; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). "Although conflicting expert opinions may raise credibility issues which can only be resolved by a jury, expert opinions that are conclusory, speculative, or unsupported by the record are...