Longhi v. Lewit

• Decision Date: 14 October 2020
• Docket Number: Index No. 58508/13,2016–11130,2017–06410,2017–00797
• Citation: 133 N.Y.S.3d 623,187 A.D.3d 873
• Parties: Maryann LONGHI, etc., appellant-respondent, v. Harvey LEWIT, etc., et al., respondents, Michael S. Canter, etc., et al., respondents-Appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 873

133 N.Y.S.3d 623

Maryann LONGHI, etc., appellant-respondent,

v. Harvey LEWIT, etc., et al., respondents,Michael S. Canter, etc., et al., respondents-Appellants, et al., defendants.

2016–11130

2017–00797

2017–06410

Index No. 58508/13

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

Argued - January 21, 2020

October 14, 2020

Hasapidis Law Offices, South Salem, N.Y. (Annette G. Hasapidis and Abend & Silber, PLLC [Josh Silber ], of counsel), for appellant-respondent.

Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, New York, N.Y. (Stephanie Campbell of counsel), for respondents-appellants Michael S. Canter, Donald McKnight, and Emergency Medical Associates.

Martin Clearwater & Bell LLP, New York, N.Y. (Barbara D. Goldberg and Jaqueline D. Berger of counsel), for respondent-appellant Andrew Moulton.

Feldman, Kleidman, Coffey & Sappe, LLP, Fishkill, N.Y. (Donald J. Scialabba of counsel), for respondent Harvey Lewit.

Nealon Scialabba & Baker P.C., White Plains, N.Y. (Richard J. Nealon and Donald J. Scialabba of counsel), for respondent Hudson Valley Emergency Medicine, PLLC.

Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner of counsel), for respondent Vassar Brothers Medical Center, P.C.

The Law Offices of Steinberg, Symer & Platt, LLP, Poughkeepsie, N.Y. (Jonathan E. Symer of counsel), for respondents Bernadette Tillmon and Mid–Hudson Medical Group, P.C.

Bartlett LLP, Garden City, N.Y. (Robert G. Vizza and Kenneth S. Oliver of counsel), for respondents Howard Gelber and Greater Northeast Radiology Associates, P.C.

Garson & Jakub, LLP, New York, N.Y. (Susan M. McNamara and Louis Jakub of counsel), for respondent Open MRI of Fishkill, LLC.

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Melissa A. Murphy–Petros, Judy C. Selmeci, and Michael J. O'Malley of counsel), for respondent Westchester County Health Care Corporation.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated September 30, 2016, (2) a judgment of the same court dated December 21, 2016, and (3) an order of the same court dated May 19, 2017, and the defendants Michael S. Canter, Donald McKnight, and Emergency Medical Associates and the defendant Andrew Moulton separately cross-appeal from the order dated September 30, 2016. The order dated September 30, 2016, insofar as appealed from, granted the motion of the defendants Harvey Lewit and Hudson Valley Emergency Medicine, PLLC, for summary judgment dismissing the complaint insofar as asserted against them, granted that branch of the motion of the defendant Vassar Brothers Medical Center, P.C., which was for summary judgment dismissing the complaint insofar as asserted against it, granted those branches of the motion of the defendants Todd Baldwin, Bernadette Tillmon, and Mid–Hudson Medical Group, P.C., which were for summary judgment dismissing the complaint insofar as asserted against the defendants Bernadette Tillmon and Mid–Hudson Medical Group, P.C., granted the motion of the defendants Howard Gelber and Greater Northeast Radiology Associates, P.C., for summary judgment dismissing the complaint insofar as asserted against them, granted the motion of the defendant Open MRI of Fishkill, LLC, for summary judgment dismissing the complaint insofar as asserted against it, and granted that branch of the motion of the defendant Westchester County Health Care Corporation which was for summary judgment dismissing the claims asserted against it based upon alleged malpractice by nonphysician staff. The order dated September 30, 2016, insofar as cross-appealed from by the defendants Michael S. Canter, Donald McKnight, and Emergency Medical Associates, denied the motion of those defendants for summary judgment dismissing the complaint insofar as asserted against them. The order dated September 30, 2016, insofar as cross-appealed from by the defendant Andrew Moulton, denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him. The judgment, upon so much of the order dated September 30, 2016, as granted the motion of the defendants Howard Gelber and Greater Northeast Radiology Associates, P.C., for summary judgment dismissing the complaint insofar as asserted against them, is in favor of those defendants and against the plaintiff dismissing the complaint insofar as asserted against those defendants. The order dated May 19, 2017, insofar as appealed from, upon reargument, vacated so much of the determination in the order dated September 30, 2016, as denied that branch of the motion of the defendant Westchester County Health Care Corporation which was for summary judgment dismissing the claims asserted against it based upon alleged malpractice by medical residents and, thereupon, granted that branch of the prior motion, and, upon reargument, adhered to so much of the determination in the order dated September 30, 2016, as granted that branch of that defendant's motion which was for summary judgment dismissing the claims asserted against it based upon alleged malpractice by nonphysician staff.

ORDERED that the appeal from so much of the order dated September 30, 2016, as granted that branch of the motion of the defendant Westchester County Health Care Corporation which was for summary judgment dismissing the claims asserted against it based upon alleged malpractice by nonphysician staff is dismissed, as that portion of the order was superseded by the order dated May 19, 2017, made upon reargument; and it is further,

ORDERED that the appeal from so much of the order dated September 30, 2016, as granted the motion of the defendants Howard Gelber and Greater Northeast Radiology Associates, P.C., for summary judgment dismissing the complaint insofar as asserted against them is dismissed; and it is further,

ORDERED that the order dated September 30, 2016, is affirmed insofar as reviewed on the appeal; and it is further,

ORDERED that the order dated September 30, 2016, is reversed insofar as cross-appealed from by the defendants Michael S. Canter, Donald McKnight, and Emergency Medical Associates, on the law, and the motion of those defendants for summary judgment dismissing the complaint insofar as asserted against them is granted; and it is further,

ORDERED that the order dated September 30, 2016, is reversed insofar as cross-appealed from by the defendant Andrew Moulton, on the law, and that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him is granted; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that the order dated May 19, 2017, is modified, on the law, by deleting the provision thereof adhering to so much of the original determination in the order dated September 30, 2016, as granted that branch of the motion of the defendant Westchester County Health Care Corporation which was for summary judgment dismissing the claims asserted against it based upon alleged malpractice by nonphysician staff, and substituting therefor a provision vacating that portion of the original determination and, thereupon, denying that branch of the motion; as so modified, the order dated May 19, 2017, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants Harvey Lewit, Hudson Valley Emergency Medicine, PLLC, Vassar Brothers Medical Center, P.C., Bernadette Tillmon, Mid–Hudson Medical Group, P.C., Howard Gelber, Greater Northeast Radiology Associates, P.C., Open MRI of Fishkill, LLC, Michael S. Canter, Donald McKnight, Emergency Medical Associates, and Andrew Moulton, appearing separately and filing separate briefs, payable by the plaintiff.

The appeal from so much of the order dated September 30, 2016, as granted the motion of the defendants Howard Gelber and Greater Northeast Radiology Associates, P.C. (hereinafter Greater Northeast), for summary judgment dismissing the complaint insofar as asserted against them must be dismissed, because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from that portion of the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

On January 22, 2012, Richard Longhi (hereinafter the decedent) went to the defendant Mid–Hudson Medical Group, P.C. (hereinafter Mid–Hudson), with complaints of "severe back pain," and he was instructed to go to the emergency room due to concerns over a possible aneurysm

and tracheal deviation. The decedent then went to the emergency room at the defendant Vassar Brothers Medical Center, P.C. (hereinafter Vassar), where he was examined by the defendant physician Harvey Lewit, who ruled out an aneurysm and tracheal deviation, and discharged the decedent with instructions to return if his condition worsened.

On January 24, 2012, the decedent returned to Mid–Hudson, where he was examined by the defendant physician Bernadette Tillmon, who instructed the decedent to undergo a thoracic and lumbar spine MRI

to rule out an epidural abscess. The MRI was conducted on the following day at a facility owned by the defendant Open MRI of Fishkill, LLC (hereinafter Open MRI). The MRI images were interpreted by the defendant physician Howard Gelber, and his interpretation was transmitted to Tillmon on the morning of January 26, 2012. After receiving the MRI results, Tillmon suspected an epidural abscess

and instructed the decedent to go to the emergency room.

On January 26, 2012, at approximately 12:27 p.m., the decedent went to Westchester Medical Center, where he was examined by the defendant physicians Michael S. Canter ...