Johnson v. Queens-Long Island Medical Group

• Decision Date: 21 November 2005
• Docket Number: 2004-02673.
• Citation: 2005 NY Slip Op 08953,806 N.Y.S.2d 614,23 A.D.3d 525
• Parties: LILY JOHNSON, Appellant-Respondent, v. QUEENS-LONG ISLAND MEDICAL GROUP, P.C., et al., Respondents, JAMAICA HOSPITAL et al., Respondents-Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

23 A.D.3d 525

806 N.Y.S.2d 614

2005 NY Slip Op 08953

LILY JOHNSON, Appellant-Respondent, v. QUEENS-LONG ISLAND MEDICAL GROUP, P.C., et al., Respondents JAMAICA HOSPITAL et al., Respondents-Appellants, et al., Defendant.

2004-02673.

Appellate Division of the Supreme Court of the State of New York, Second Department.

November 21, 2005.

In an action to recover damages for medical malpractice and wrongful death, etc., the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Hart, J.), dated February 11, 2004, as granted the motion of the defendant North Shore University Hospital at Forest Hills, as successor-in-interest of LaGuardia Hospital, which was for summary judgment dismissing the complaint insofar as asserted against it and granted that branch of the separate motion of the defendants Queens-Long Island Medical Group, P.C., Arthur Gray, Jr., Asha Haldea, Balvinder Singh Sareen, Eladio Dieguez, and

Surujpaul Ragnauth which was for summary judgment dismissing the complaint insofar as asserted against the defendants Queens-Long Island Medical Group, P.C., Arthur Gray, Jr., Asha Haldea, and Eladio Dieguez, and the defendants Jamaica Hospital and Rolando R. Roman separately appeal, as limited by their brief, from so much of the same order as denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Queens-Long Island Medical Group, P.C., Arthur Gray, Jr., Asha Haldea, Balvinder Singh Sareen, Eladio Dieguez, and Surujpaul Ragnauth which was for summary judgment dismissing the complaint insofar as asserted against the defendants Queens-Long Island Medical Group, P.C., Arthur Gray, Jr., Asha Haldea, and Eladio Dieguez, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the defendant North Shore University Hospital at Forest Hills, as successor-in-interest of LaGuardia Hospital, payable by the plaintiff, one bill of costs to the plaintiff, payable by the defendants Queens-Long Island Medical Group, P.C., Arthur Gray, Jr., Asha Haldea, and Eladio Dieguez, and one bill of costs to the plaintiff, payable by the defendants Jamaica Hospital and Rolando R. Roman, and the complaint is reinstated insofar as asserted against the defendants Queens-Long Island Medical Group, P.C., Arthur Gray, Jr., Asha Haldea, and Eladio Dieguez.

"In a medical malpractice action, the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by showing the absence of a triable issue of fact as to whether the defendant physician was negligent" (Taylor v Nyack Hosp., 18 AD3d 537, 538 [2005]). If the moving party makes such showing, the burden then shifts to the plaintiff to demonstrate the existence of a triable issue of fact by submitting an expert's affidavit attesting to a departure from accepted practice and containing an opinion that the defendant's acts or omissions were a competent producing cause of the injury (see Dellacona v Dorf, 5 AD3d 625 [2004]).

Here, the defendant North Shore University Hospital at Forest Hills, as successor-in-interest of LaGuardia Hospital (hereinafter North Shore), established its prima facie entitlement to summary judgment by submitting evidence demonstrating that its emergency room care of the decedent did not deviate from good and accepted standards of medical practice (see Taylor v Nyack Hosp., supra; Reyz v Khelemsky, 10 AD3d 714 [2004]).

Contrary to the plaintiff's contention, her medical expert failed to raise a triable issue of fact as to whether North Shore's conduct constituted a departure from the requisite...