Farrell v. Herzog

• Decision Date: 03 December 2014
• Docket Number: 2013-02204
• Citation: 998 N.Y.S.2d 202,2014 N.Y. Slip Op. 08396,123 A.D.3d 655
• Parties: Kyle FARRELL, etc., respondent-appellant, v. David M. HERZOG, etc., et al., defendants, Michael A. Schirripa, etc., appellant, Nick G. Faraci, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 655
998 N.Y.S.2d 202
2014 N.Y. Slip Op. 08396

Kyle FARRELL, etc., respondent-appellant
v.
David M. HERZOG, etc., et al., defendants
Michael A. Schirripa, etc., appellant
Nick G. Faraci, etc., et al., respondents.

2013-02204

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

Dec. 3, 2014.

998 N.Y.S.2d 203

Gerspach Sikoscow LLP, New York, N.Y. (Mary E. Pearson of counsel), for appellant.

Kramer, Dillof, Livingston & Moore, New York, N.Y. (Matthew Gaier of counsel), for respondent-appellant.

Geisler Henninger & Fitzmaurice LLP, Mineola, N.Y. (Stacy Fitzmaurice of counsel), for respondents.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.

Opinion

123 A.D.3d 656

In an action to recover damages for medical malpractice, the defendant Michael A. Schirripa appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated December 19, 2012, as denied his cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him and the plaintiff cross-appeals from so much of the same order as granted those branches of the motion of the defendants Nick G. Faraci, Linda DiToro, Comprehensive Pediatrics, P.C., and Faraci, Faraci & DiToro, Physicians, P.C., which were for summary judgment dismissing the complaint insofar as asserted against the defendants Nick G. Faraci, Linda DiToro, and Faraci, Faraci & DiToro, Physicians, P.C.

ORDERED that the order is reversed insofar as cross-appealed from, on the law, and those branches of the motion of the defendants Nick G. Faraci, Linda DiToro, Comprehensive Pediatrics, P.C., and Faraci, Faraci & DiToro, Physicians, P.C., which were for summary judgment dismissing the complaint insofar as asserted against the defendants Nick G. Faraci, Linda DiToro, and Faraci, Faraci & DiToro, Physicians, P.C., are denied; and it is further,

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the appellant and the respondents appearing separately and filing separate briefs.

“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” (Faicco v. Golub, 91 A.D.3d 817, 818, 938 N.Y.S.2d 105 [internal quotation marks omitted]; see Schofield v. Edward B. Borden, M.D., P.C., 117 A.D.3d 936, 986 N.Y.S.2d 215 ; Mancuso v. Friscia, 108 A.D.3d 748, 970 N.Y.S.2d 77 ; Roca v. Perel, 51 A.D.3d 757, 758, 859 N.Y.S.2d 203 ; Furey v. Kraft, 27...