Golub v. Sutton

• Decision Date: 26 March 2001
• Citation: 723 N.Y.S.2d 59,281 A.D.2d 589
• Parties: (A.D. 2 Dept. 2001) Lesli Golub, respondent, v Albert Sutton, etc., et al., appellants, et al., defendant. 2000-04966 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 59

723 N.Y.S.2d 59 (A.D. 2 Dept. 2001)

Lesli Golub, respondent, v Albert Sutton, etc., et al., appellants, et al., defendant.

2000-04966

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

March 26, 2001

Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., of counsel), for appellants Albert Sutton, Jay G. Merker, and Long Island Medical and Gastroenterology Assoc., P.C.

O'Leary & O'Leary, Jamaica, N.Y. (Joseph D. Furlong of counsel), for appellant Paul Katz.

Beck, Gewurz & Strauss, PLLC, Garden City, N.Y. (Leland Stuart Beck of counsel), for respondent.

LAWRENCE J. BRACKEN, P.J., DAVID S. RITTER, GLORIA GOLDSTEIN, SANDRA J. FEUERSTEIN, JJ.

In an action to recover damages for medical malpractice, the defendants Albert Sutton, Jay G. Merker, and Long Island Medical and Gastroenterology Associates, P.C., appeal from so much of an order of the Supreme Court, Queens County (Glover J.), dated May 1, 2000, as denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them and to strike the plaintiff's amended bill of particulars in response to the demand of the defendants Jay G. Merker and Long Island Medical and Gastroenterology Associates, P.C., and the defendant Paul Katz separately appeals from so much of the same order as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the appeal by the defendant Albert Sutton from so much of the order as denied that branch of the cross motion which was to strike the amended bill of particulars is dismissed, without costs or disbursements, as the defendant Albert Sutton is not aggrieved by that portion of the order (see, CPLR 5511); and it is further,

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the cross motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants Jay G. Merker and Long Island Medical and Gastroenterology Associates, P.C. and to strike the amended bill of particulars, and substituting therefor a provision granting those branches of the cross motion; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements.

The plaintiff suffered from diverticulitis. Her gastroenterologist, the defendant Jay Merker, recommended that she consult a surgeon, the defendant Paul Katz. On April 12, 1996, Dr. Katz performed surgery at Long Island Jewish Hillside Medical Center. During the course of this operation, the defendant Albert Sutton, a urologist, unsuccessfully attempted to insert a catheter in the plaintiff's left ureter.

Following the April 1996 surgery, the plaintiff continued to suffer from constipation and abdominal pain. On May 30, 1996, she went to the emergency room at North Shore University Hospital, where it was later noted that the plaintiff had a "rectal stricture at the site of the anastomosis".

The plaintiffs condition required a second operation, which was performed by Dr. Lester Gottesman at St. Lukes Hospital, New York, on ...