Kelley v. Kingsbrook Jewish Med. Ctr.

• Decision Date: 07 November 2012
• Citation: 2012 N.Y. Slip Op. 07275,100 A.D.3d 600,953 N.Y.S.2d 276
• Parties: Lois KELLEY, respondent, v. KINGSBROOK JEWISH MEDICAL CENTER, et al., defendants, Susan Schneidermesser, etc., et al., appellants.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 600

953 N.Y.S.2d 276

2012 N.Y. Slip Op. 07275

Lois KELLEY, respondent,

v. KINGSBROOK JEWISH MEDICAL CENTER, et al., defendants,Susan Schneidermesser, etc., et al., appellants.

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

Nov. 7, 2012.

Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell of counsel), for appellants.

Burns & Harris, New York, N.Y. (Christopher J. Donadio, Jean M. Prabhu, and Judith F. Stempler of counsel), for respondent.

PETER B. SKELOS, J.P., ANITA R. FLORIO, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

In an action to recover damages for podiatric malpractice and lack of informed consent, the defendants Susan Schneidermesser and Susan G. Schneidermesser, DPM, P.C., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated July 26, 2011, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

“A defendant physician moving for summary judgment in a medical malpractice action has the initial burden of establishing, prima facie, either the absence of any departure from good and accepted medical practice or that any departure was not the proximate cause of the alleged injuries” ( Shichman v. Yasmer, 74 A.D.3d 1316, 1318, 904 N.Y.S.2d 218). If the defendant physician meets his or her burden, the plaintiff, in opposition, “must submit evidentiary facts or materials to rebut the defendant physician's prima facie showing, so as to demonstrate the existence of a triable issue of fact” ( Shichman v. Yasmer, 74 A.D.3d at 1318, 904 N.Y.S.2d 218).

Here, the defendant Susan Schneidermesser (hereinafter Schneidermesser), a podiatrist who performed a bilateral bunionectomy upon the plaintiff, and the defendant Susan G. Schneidermesser, DPM, P.C. (hereinafter together the appellants), made a prima facie showing of their entitlement to judgment as a matter of law dismissing the podiatric malpractice cause of action insofar as asserted against them. The appellants' submissions, which included a podiatric expert's affidavit, established that Schneidermesser did not deviate or depart from accepted podiatric practice in her care and treatment of the plaintiff, and that Schneidermesser's care and treatment of the plaintiff were not proximate causes of the plaintiff's injuries ( see id. at 1318–1319, 904 N.Y.S.2d 218). In opposition, although the plaintiff's contentions regarding Schneidermesser's alleged failure to perform pre-operative vascular tests should not have been considered ( see Dolan v. Halpern, 73 A.D.3d 1117, 902 N.Y.S.2d 585;Langan v. St. Vincent's Hosp. of...