Martel v. Southampton Hosp., INDEX No. 07-24175
| Decision Date | 29 November 2013 |
| Docket Number | INDEX No. 07-24175 |
| Citation | 2013 NY Slip Op 33096 |
| Parties | MELINDA MARTEL, as surviving spouse and Administratrix of the goods, chattels and credits which were of ROGER M. MARTEL, deceased, MELINDA MARTEL, as mother and natural guardian of infant plaintiff MITCHELL S. BEYEL and SARAH M. MERRITT, individually, Plaintiff, v. SOUTHAMPTON HOSPITAL, MECIKO MUHAREMOVIC, M.D., LOUIS JOHN AVVENTO, M.D., ALEXANDER ZUHOSKI, M.D., and STEVEN PAUL OUZOUNIAN, M.D. and DARIN G. WIGGINS, M.D., Defendants. |
| Court | New York Supreme Court |
Hon. PETER H. MAYER
Justice of the Supreme Court
MOTION DATE 4-9-13 (#019)
MOTION DATE 4-18-13 (#020)
MOTION DATE 4-23-13 (#021)
ADJ. DATE 9-17-13
Mot. Seq. #019-MD
# 020 - MD
#021 -MD
DEBRA S. REISER, ESQ.
Attorney for Plaintiff
BARTLETT, McDONOUGH, BASTONE, et al.
Attorney for Defendant Southampton Hospital
SHAUB, AHMUTY, CITRIN & SPRATT, LLP
Attorney for Defendant Muharemovic
GEISLER & GABRIELE, LLP
Attorney for Defendants Avvento, Zuhoski &
Ouzounian
AARONSON RAPPAPORT FEINSTEIN, et al.
Attorney for Defendant Wiggins
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/Order to Show Cause (019) by the defendant Ouzounian, dated March 18, 2013, and supporting papers 1-33; (2) Notice of Motion (020) by the defendant Southampton Hospital, dated February 15, 2013, supporting papers 34-59; (3) Notice of Motion (021) by the defendants Ouzounian, Avvento, and Zuhoski, dated April 1, 2013, supporting papers 60-63; (4) Affirmation in Opposition by the plaintiffs, dated June 21, 2013, and supporting papers 64-82; (5) Affirmation in Opposition by the plaintiffs, dated June 24, 2013 83-104; (6) Reply Affirmations by thedefendant Ouzounian, each dated September 5,2013 and supporting papers 105-109; 110-111, and by defendant Southampton Hospital dated August 15, 2013, and supporting papers 112-114; (5) Other _ (and after hearing counsels' oral arguments in support of and opposed to the motion); and now UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is
ORDERED that motion (019) by defendant Steven Paul Ouzounian, M.D. pursuant to CPLR 3212 for summary judgment dismissing the complaint as asserted against him is denied; and it is further
ORDERED that motion (020) by defendant Southampton Hospital pursuant to CPLR 3212 for summary judgment dismissing the complaint as asserted against it is denied; and it is further
ORDERED that motion (021) by defendants Louis John Avvento, M.D., Alexander Zuhoski, M.D. Steven Paul Ouzounian, M.D. pursuant to CPLR 3212 for summary judgment dismissing that part of the complaint asserted on behalf of Sarah M. Merritt as a matter of law is denied.
It is noted that the note of issue and certificate of readiness were filed with this court on October 15, 2012. Pursuant to CPLR 3212, the last date upon which a motion for summary judgment could have been made was February 12, 2013. By order dated January 15, 2013 (Mayer, J.), the time in which a motion for summary judgment could be filed was extended to March 19, 2013. By stipulation signed by the parties, the time in which to file summary judgment motions was extended to May 7, 2013, and thus, the within motions are deemed timely.1 This action has been discontinued as against defendant Darin G. Wiggins, M.D.
In this medical malpractice action premised upon the defendants' alleged negligent departures from the good and accepted standards of medical care, it is alleged that the defendants failed to timely diagnose and treat the plaintiffs' decedent, Roger M. Martel, for pulmonary emboli, causing him to suffer cardiopulmonary arrest resulting in his death on July 15, 2006, at 37 years of age. Causes of action for negligence are asserted as to all defendants. Claims for negligent supervision, hiring and retention are asserted against defendant Southampton Hospital. A claim for wrongful death of the decedent, is asserted by decedent's spouse, Melinda Martel, and decedent's stepchildren, plaintiffs Mitchell S. Beyel and Sarah M. Merritt. Approximately three weeks prior to the decedent's admission to Southampton Hospital by defendant Meciko A. Muharemovic, M.D., the decedent began to experience chills and fever, and his wife noted an erythematous round rash on his back. He had a prior diagnosis of hemolytic anemia. His condition progressed to dyspnea, dizziness, and a dry cough. Upon admission to defendant hospital on July 11, 2006 by Dr. Muharemovic, the decedent was alert and oriented, icteric (jaundiced), and in no acute distress with stable vital signs. A hematological consult was obtained from defendants Louis Avvento, M.D. and Alexander Zuhoski, M.D. Due to a drop in his hemoglobin and hematocrit, on July 13, 2006, the decedent was transfused with two units of packed cells after being premedicated, but the decedent's hemoglobin fluctuated under 7 grams. Rituxan was administered with premedication on July 14, 2006. On July 15, 2006, the decedent continued to deteriorate and was transferred to ICU. He went into cardiorespiratory arrest requiring aggressive resuscitation without success, and was pronounced dead due to severe anemia secondary to full hemolytic anemia. He had the additional diagnosis of Lyme's disease.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790 [1979]; Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N.Y.U. Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v N.Y.U. Medical Center, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form...and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 1981]).
Unsigned deposition transcripts are not in admissible form unless they are accompanied by an affidavit or proof of service pursuant to CPLR 3116 to be considered on these motions, however, the unsigned transcripts of non-party witnesses are not admissible (see Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 850 NYS2d 201 [2d Dept 2008]; McDonald v Maus, 38 AD3d 727, 832 NYS2d 291 [2d Dept 2007]; Pina v Flik Intl. Corp., 25 AD3d 772, 808 NYS2d 752 [2d Dept 2006]). The unsigned but certified copy of the transcript of the examination before trial of a party may be considered if not objected to (see Zalot v Zieba, 81 AD3d 935, 917 NYS2d 285 [2d Dept 2011]). The unsigned deposition transcript of a moving defendant can be considered by this court as adopted as accurate by the moving defendant (see Ashif v Won Ok Lee, 57 AD3d 700, 868 NYS2d 906 [2d Dept 2008]).
In support of motion (019), defendant Ouzounian has submitted, inter alia, an attorney's affirmation; copies of the summons and complaint, his answer, and plaintiffs' verified bill of particulars, plaintiff's amended supplemental verified bill of particulars; copy of the Southampton Hospital record of March 5, 2001, May 12, 2004, and July 11, 2006, various excerpts from medical records; unsigned but certified copies of the transcripts of the examinations before trial of Melinda Martel dated July 27, 2009 and January 9, 2013, Sarah Merritt dated November 17, 2009, submitted without objection and considered herein (see Zalot v Zieba, 81 AD3d 935, 917 NYS2d 285 [2d Dept 2011]); the signed transcripts of the examinations before trial of defendant Ouzounian dated September 29, 2010, co-defendant Muharemovic dated March 15, 2010; the unsigned but certified transcript of co-defendant Zuhoski; the unsigned copies of the transcripts of the examinations before trial of non-party witnesses Samantha Judice dated January 6, 2010, Claire Iannacone dated June 16, 2011 and May 7, 2012, John Siefken dated August 23, 2011, Amanda Lovett dated August 23, 2012, and Karen Stafford dated August 3, 2012 are not in admissible form; the unsigned copies of the transcripts of the examinations before trial of co-defendant Wiggins dated October 22, 2010, accompanied with proof of service, and June 22, 2012 without proof of service; an uncertified copy of an autopsy report; and the undated expert affirmation of Dan Reiner, M.D.
In support of motion (020), defendant Southampton Hospital has submitted, inter alia, an attorney's affirmation; copies of the summons and complaints, answers served by Southampton Hospital, co-defendants Zuhoski, Avvento, Ouzounian, Muharemovic, Wiggins, plaintiff's verified bill of particulars; copies of the unsigned but certified transcripts of the examinations before trial of Melinda Martel dated July 27, 2009, Sarah Merritt dated November 17, 2009, defendant Avvento date January 6,2010, defendant Ouzounian dated September 29, 2010; copies of the signed transcripts of the examinations before trial of defendant Muharemovic dated March 15, 2010, non-party witness Samantha Judice dated January 6, 2010, non-party witness John Siefken dated August 23, 2011, non-party Darin Wiggins, M.D. dated October 22, 2010; the unsigned but certified transcripts of the...
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