Hayden v. Gordon

• Decision Date: 24 January 2012
• Citation: 2012 N.Y. Slip Op. 00487,91 A.D.3d 819,937 N.Y.S.2d 299
• Parties: Ruthann HAYDEN, et al., respondents, v. Lawrence GORDON, etc., appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00487

91 A.D.3d 819

937 N.Y.S.2d 299

Ruthann HAYDEN, et al., respondents,

v.Lawrence GORDON, etc., appellant, et al., defendants.

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

Jan. 24, 2012.

Feldman, Kleidman & Coffey, LLP, Fishkill, N.Y. (Martha S. Weiss of counsel), for appellant.

Jonathan C. Reiter, New York, N.Y. (Carol G. Stone of counsel), for respondents.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and JOHN M. LEVENTHAL, JJ.

In an action to recover damages for medical malpractice, etc., the defendant Lawrence Gordon appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Orange County (Bartlett, J.), dated October 26, 2010, as granted the plaintiffs' motion for leave to renew their opposition to his prior motion for summary judgment dismissing the amended complaint insofar as asserted against him, which had been granted in an order of the same court dated July 13, 2010, and, upon renewal, denied his motion for summary judgment, and (2) from an order of the same court dated January 6, 2011, which denied his motion for recusal.

ORDERED that the order dated October 26, 2010, is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated January 6, 2011, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The plaintiff Ruthann Hayden (hereinafter Hayden) was diagnosed with adenoid cystic carcinoma of the right ear canal on June 13, 2007. Hayden, and her husband, suing derivatively, commenced this action to recover damages for medical malpractice against, among others, the appellant, Lawrence Gordon, an otolaryngologist, who treated her on October 10, 2005, and November 1, 2005. The complaint alleged, inter alia, that the appellant failed to perform further testing to determine the cause of her right ear complaints, resulting in a delayed diagnosis of cancer.

Under the circumstances presented, the Supreme Court providently exercised its discretion in granting the plaintiffs' motion for leave to renew their opposition to the appellant's prior motion for summary judgment dismissing the amended complaint insofar as asserted against him, allowing the movants the opportunity to correct the technical defect of having submitted an affirmation rather than a sworn affidavit of their expert physician, who was not “authorized by law to practice in” New York as required by CPLR 2106 ( see CPLR 2201, 2221[e]; Arkin v. Resnick, 68 A.D.3d 692, 694, 890 N.Y.S.2d 95; DeLeonardis v. Brown, 15 A.D.3d 525, 526, 790 N.Y.S.2d 686; Acosta v. Rubin, 2 A.D.3d 657, 658, 768 N.Y.S.2d 642; Wester v. Sussman, 304 A.D.2d 656, 656–657, 757 N.Y.S.2d 500). Moreover, the Supreme Court did not improvidently exercise its discretion in considering the expert affidavit submitted by the plaintiffs, since there was no evidence that the failure to disclose the identity of their expert witness pursuant to CPLR 3101(d)(1)(i) was intentional or willful, and there was no showing of prejudice to the appellant ( see Browne v. Smith, 65 A.D.3d 996, 886 N.Y.S.2d 696; Hernandez–Vega v. Zwanger–Pesiri Radiology Group, 39 A.D.3d 710, 710–711, 833 N.Y.S.2d 627; Simpson v. Tenore & Guglielmo, 287 A.D.2d 613, 731 N.Y.S.2d 859).

Upon renewal, the Supreme Court properly denied the appellant's motion for summary judgment. “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” ( DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674; see Barnett v. Fashakin, 85 A.D.3d 832, 834, 925 N.Y.S.2d 168; Guzzi v. Gewirtz, 82 A.D.3d 838, 918 N.Y.S.2d 552). 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 ( see Wexelbaum v. Jean, 80 A.D.3d 756, 757, 915 N.Y.S.2d 161; Roca v. Perel, 51 A.D.3d 757, 758–759, 859 N.Y.S.2d 203). “[T]o defeat summary judgment, the nonmoving party need only raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party's prima facie showing” ( Stukas v. Streiter, 83 A.D.3d 18, 24, 918 N.Y.S.2d 176). Thus, where a defendant in a medical malpractice action, in moving for summary judgment, makes only a prima facie showing that he or she did not deviate or depart from accepted medical practice, the plaintiff, in order to defeat summary judgment, need only raise a triable issue of fact as to the alleged deviation or departure, and need not address the issue of proximate cause ( id. at 24–25, 918 N.Y.S.2d 176).

Here, the appellant established his prima facie entitlement to judgment as a matter of law on the issue of deviation or departure from accepted medical practice through the submission of his own affidavit reciting his treatment of Hayden's right ear in October and November of 2005, and his opinions that she suffered from acute otitis externa (an infection of the exterior ear canal), a narrowed ear canal, and exostosis (an outgrowth of bone) in her right ear, that he properly diagnosed and treated her ear problems, and that he did not depart from accepted standards of care in failing to further...