Lamacchia v. Schwartz

• Decision Date: 03 April 2012
• Citation: 941 N.Y.S.2d 245,2012 N.Y. Slip Op. 02464,94 A.D.3d 712
• Parties: John LAMACCHIA, etc., appellant, v. Mark A. SCHWARTZ, defendant,Good Samaritan Hospital, respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02464

94 A.D.3d 712

941 N.Y.S.2d 245

John LAMACCHIA, etc., appellant,

v.Mark A. SCHWARTZ, defendant,Good Samaritan Hospital, respondent.

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

April 3, 2012.

Silverstein & Bast, New York, N.Y. (Michael M. Bast of counsel), for appellant.

Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, Melville, N.Y. (Geoffrey H. Pforr of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Molia, J.), dated November 23, 2010, which denied his motion pursuant to CPLR 3124 to compel discovery of certain records and granted the cross motion of the defendant Good Samaritan Hospital pursuant to CPLR 3103 for a protective order with respect to those records, and (2) an order of the same court dated April 6, 2011, which denied his motion for leave to renew and reargue.

ORDERED that the order dated November 23, 2010, is modified, on the law, (1) by deleting the provision thereof denying that branch of the plaintiff's motion which was to compel discovery of a credentialing file maintained by the defendant Good Samaritan Hospital regarding the defendant Mark A. Schwartz, and any separate written record of the administrative peer review hearing conducted by the defendant Good Samaritan Hospital which resulted in the revocation of the attending privileges of the defendant Mark A. Schwartz, and substituting therefor a provision granting that branch of the motion to the extent of directing the defendant Good Samaritan Hospital to produce those records to the Supreme Court for an in camera review to determine whether such records contain statements by the defendants regarding the subject matter of this action, and if so, for disclosure pursuant to Education Law § 6527(3) and Public Health Law § 2805–m(2) of those portions of the records which contain such statements, and (2) by deleting the provision thereof granting that branch of the cross motion of the defendant Good Samaritan Hospital which was for a protective order with respect to the aforementioned credentialing file and any separate written record of the aforementioned administrative peer review and substituting therefor a provision denying that branch of the cross motion to the extent of allowing the aforementioned in camera review and subsequent disclosure of those portions of the records, if any, which contain statements by the defendants regarding the subject matter of this action; as so modified, the order dated November 23, 2010, is affirmed, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith; and it is further,

ORDERED that the appeal from so much of the order dated April 6, 2011, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument ( see Latopolski v. Rudge, 35 A.D.3d 390, 824 N.Y.S.2d 731); and it is further,

ORDERED that the appeal from so much of the order dated April 6, 2011, as denied that branch of the plaintiff's motion which was for leave to renew that branch of his motion which was to compel discovery of, and his opposition to that branch of cross motion of the defendant Good Samaritan Hospital which was for a protective order with respect to, those portions of the aforementioned credentialing file and any separate written record of the aforementioned administrative peer review, which contain statements by the defendants regarding the subject matter of this action, is dismissed as academic in light of the determination on the appeal from the order dated November 23, 2010; and it is further,

ORDERED that the order dated April 6, 2011, is affirmed insofar as reviewed; and it is further,

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

The plaintiff commenced this action against the defendants, Mark A. Schwartz (hereinafter Schwartz) and Good Samaritan Hospital (hereinafter the Hospital), alleging that, as a result of the defendants' malpractice, his wife sustained a heart attack during a procedure to insert a device known as a port-a-cath, which administers medication. The plaintiff alleged that the Hospital negligently allowed Schwartz to have attending privileges at the Hospital. The plaintiff also claimed that, following an internal...