Gentile v. Malihan

Decision Date22 January 2020
Docket Number2016-12706,Index No. 101700/11
Citation179 A.D.3d 902,116 N.Y.S.3d 657
Parties Jodie GENTILE, et al., Respondents, v. Amie A. MALIHAN, etc., et al., Appellants, et al., Defendant.
CourtNew York Supreme Court — Appellate Division

179 A.D.3d 902
116 N.Y.S.3d 657

Jodie GENTILE, et al., Respondents,
v.
Amie A. MALIHAN, etc., et al., Appellants, et al., Defendant.

2016-12706
Index No. 101700/11

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

Argued—October 30, 2019
January 22, 2020


DeCorato Cohen Sheehan & Federico, LLP, New York, N.Y. (Anthony Lugara and Amanda L. Tate of counsel), for appellant Amie A. Malihan.

Amabile & Erman, P.C., Staten Island, N.Y. (Alexandra K. Formica of counsel), for appellant Gary Spierer.

Dwight D. Joyce, Stony Point, N.Y. (Stephen J. Cole–Hatchard of counsel), for respondents.

ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.

116 N.Y.S.3d 658

DECISION & ORDER

179 A.D.3d 902

In an action, inter alia, to recover damages for medical malpractice, etc., the defendants Amie A. Malihan and Gary Spierer separately appeal from an order of the Supreme Court, Richmond County (Kim Dollard, J.), dated September 9, 2016. The order denied the motion of the defendant Amie A. Malihan and the separate motion of the defendant Gary Spierer for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed, with one bill of costs.

On April 23, 2010, the plaintiff Jodie Gentile (hereinafter the plaintiff) underwent a surgery performed by the defendant Amie A. Malihan, a plastic surgeon, to correct a "bulge" in her

179 A.D.3d 903

abdominal area and to excise two scars resulting from prior cesarean section incisions. On this date, the plaintiff also underwent a bilateral tubal ligation surgery, which was performed by the defendant Gary Spierer, an obstetrician/gynecologist. Following these surgeries, the plaintiff developed a hematoma, required multiple blood suctions/aspirations, and underwent a second operative procedure on May 9, 2010.

In 2011, the plaintiff, and her husband suing derivatively, commenced this action against, among others, Spierer and Malihan, inter alia, to recover damages for medical malpractice. After the completion of discovery, Spierer and Malihan separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court denied both motions. Spierer and Malihan separately appeal.

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5 cases
  • Fuessel v. Chin
    • United States
    • New York Supreme Court — Appellate Division
    • 22 Enero 2020
    ...that Chin was not its employee, the evidence submitted in support of its motion for summary judgment was insufficient to demonstrate, 179 A.D.3d 902 prima facie, that the plaintiff entered Good Samaritan's emergency room seeking treatment from a privately selected physician rather than from......
  • Helkowski v. Goodman
    • United States
    • New York Supreme Court
    • 14 Mayo 2020
    ...entitlement to judgment as a matter of law. Accordingly, the burden shifts to the plaintiff to raise a triable issue of fact (Gentile v Malihan, supra). Court finds, after affording the non-movant plaintiff the benefit of every favorable inference (Dockery v. Sprecher, 68 A.D.3d 1043 [2nd D......
  • Many v. Lossef
    • United States
    • New York Supreme Court — Appellate Division
    • 13 Enero 2021
    ...which are to be resolved by the factfinder (see Pinnock v. Mercy Med. Ctr., 180 A.D.3d 1088, 1090, 119 N.Y.S.3d 559 ; Gentile v. Malihan, 179 A.D.3d 902, 904, 116 N.Y.S.3d 657 ). Contrary to the Supreme Court's determination, the affidavit of the plaintiffs' expert does not contain concluso......
  • Ciorciari v. Elant at Fishkill, Inc.
    • United States
    • New York Supreme Court
    • 5 Marzo 2021
    ...judgment filed by HVHOA and Dr. Schaefer-Cutillo is denied as to this claimed departure by Dr. Schaefer-Cutillo [Gentile v. Malihan, 179 A.D.3d 902 (2d Dept. 2020); Kovacic v Griffin, 170 A.D.3d 1143 (2d Dept. 2019)]. The Court also finds that the parties' submissions establish the existenc......
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