Melendez v. Parkchester Med. Serv., P.C.

• Decision Date: 28 September 2010
• Citation: 908 N.Y.S.2d 33,76 A.D.3d 927
• Parties: Frances MELENDEZ, etc., al., Plaintiff-Appellant, v. PARKCHESTER MEDICAL SERVICES, P.C., et al., Defendants, Montefiore Medical Center, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 33

76 A.D.3d 927

Frances MELENDEZ, etc., al., Plaintiff-Appellant,

v. PARKCHESTER MEDICAL SERVICES, P.C., et al., Defendants,Montefiore Medical Center, et al., Defendants-Respondents.

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

Sept. 28, 2010.

Robert G. Spevack, New York, for appellant.

Garson, DeCorato & Cohen, LLP, New York (Jason D. Turken of counsel), for respondents.

ANDRIAS, J.P., SAXE, McGUIRE, MOSKOWITZ, FREEDMAN, JJ.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 1, 2009, which granted the motion by the Montefiore defendants for summary judgment dismissing the complaint against them, unanimously affirmed, without costs.

"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 demonstrate the absence of any material issues of fact" ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). Once this showing is made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). In a medical malpractice action, this burden is met by a medical expert's demonstration that the defendant's actions were a departure from the accepted standard of care in the medical community, and a proximate cause-i.e., a substantial factor-in bringing about the injury ( Sisko v. New York Hosp., 231 A.D.2d 420, 422, 647 N.Y.S.2d 191 [1996], lv. dismissed 89 N.Y.2d 982, 656 N.Y.S.2d 740, 678 N.E.2d 1356 [1997]; see also Coronel v. New York City Health & Hosps. Corp., 47 A.D.3d 456, 848 N.Y.S.2d 876 [2008] ). For this purpose, general allegations of medical malpractice that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat a malpractice defendant's motion for summary dismissal ( Fileccia v. Massapequa Gen. Hosp., 99 A.D.2d 796, 472 N.Y.S.2d 127 [1984], affd. 63 N.Y.2d 639, 479 N.Y.S.2d 520, 468 N.E.2d 702 [1984] ).

Montefiore's submissions in support of its motion met the required prima facie showing to warrant judgment as a matter of law. In May 1997, plaintiff's decedent presented at Montefiore complaining only of hemorrhoids, without any recorded complaints as to abdominal pain or other colorectal problems. An anoscopywas performed, revealing no internal hemorrhoids, and the decedent was conservatively treated. Two years later, in June 1999, decedent again presented to Montefiore complaining of hemorrhoids and rectal bleeding for three days, and this time a 2 1/2-centimeter thrombosed hemorrhoid was found and evacuated under anesthesia. On August 27, 1999, only after the decedent returned to Montefiore with new complaints of rectal bleeding, a 10-pound weight loss and no hemorrhoids, was she referred for a colonoscopy and ultimately diagnosed with colon cancer. According to Montefiore's expert, the three-month gap between commencement of the decedent's treatment for a thrombosed hemorrhoid and her cancer diagnosis did not negatively impact on her subsequent treatment or chances for survival, inasmuch as "[w]ell differentiated colonic adenocarcinoma is a slow growing cancer and...