Mitchell v. Goncalves
| Decision Date | 15 January 2020 |
| Docket Number | 2017–02290,Index No. 702587/14,2016–11999 |
| Citation | 116 N.Y.S.3d 667,179 A.D.3d 787 |
| Parties | Robert C. MITCHELL, etc., Appellant, v. John J. GONCALVES, etc., et al., Defendants, Nona Chen, etc., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
179 A.D.3d 787
116 N.Y.S.3d 667
Robert C. MITCHELL, etc., Appellant,
v.
John J. GONCALVES, etc., et al., Defendants, Nona Chen, etc., et al., Respondents.
2016–11999
2017–02290
Index No. 702587/14
Supreme Court, Appellate Division, Second Department, New York.
Argued June 18, 2019
January 15, 2020
Morelli Law Firm PLLC, New York, N.Y. (Sara A. Mahoney of counsel), for appellant.
Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, N.Y. (Lauren B. Bristol of counsel), for respondents.
MARK C. DILLON, J.P., JEFFREY A. COHEN, BETSY BARROS, 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, Queens County (Peter J. O'Donoghue, J.), entered October 6, 2016, and (2) an order of the same court entered February 27, 2017. The order entered October 6, 2016, insofar as appealed from, granted that branch of the motion of the defendants Nona Chen, Eileen P. Tutaj, Winthrop Faculty Medical Affiliates, and University Faculty Practice Corporation which was for summary judgment dismissing the complaint insofar as asserted against the defendants Winthrop Faculty Medical Affiliates and University Faculty Practice Corporation. The order entered February 27, 2017, denied the plaintiff's motion, denominated as one for leave to renew and reargue, but which was, in actuality, a motion for leave to reargue his opposition to that branch of the motion of the defendants Nona Chen, Eileen P. Tutaj, Winthrop Faculty Medical Affiliates, and University Faculty Practice Corporation which was for summary judgment dismissing the complaint insofar as asserted against the defendants Winthrop Faculty Medical Affiliates and University Faculty Practice Corporation.
Motion by the defendants Nona Chen, Eileen P. Tutaj, Winthrop Faculty Medical Affiliates, and University Faculty Practice Corporation to dismiss the appeal from the order entered February 27, 2017, on the ground that no appeal lies from an order denying reargument. By decision and order on motion of this Court dated July 26, 2017, the motion was held in abeyance and referred to the panel of Justices hearing
the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeals, it is
ORDERED that the motion is granted; and it is further,
ORDERED that the appeal from the order entered February 27, 2017, is dismissed; and it is further,
ORDERED that the order entered October 6, 2016, is reversed insofar as appealed from, on the law, and that branch of the motion of the defendants Nona Chen, Eileen P. Tutaj, Winthrop Faculty Medical Affiliates, and University Faculty Practice Corporation which was for summary judgment dismissing the complaint insofar as asserted against the defendants Winthrop Faculty Medical Affiliates and University Faculty Practice Corporation is denied; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The plaintiff commenced this action alleging, inter alia, that the defendants Winthrop Faculty Medical Affiliates and University Faculty Practice Corporation (hereinafter together the Hospital) and the defendants John J. Goncalves, Michael E. Khalife, and David S. Shin departed...
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...a hospital must address and rebut any such allegations contained in the complaint and the bill of particulars" ( Mitchell v. Goncalves, 179 A.D.3d 787, 789, 116 N.Y.S.3d 667 ; see Sheppard v. Brookhaven Mem. Hosp. Med. Ctr., 171 A.D.3d at 1235, 98 N.Y.S.3d 629 ; see also Fuessel v. Chin, 17......
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...physician otherwise acted as an agent of the hospital or the hospital exercised control over the physician" ( Mitchell v. Goncalves, 179 A.D.3d 787, 789, 116 N.Y.S.3d 667 ). Here, Wyckoff failed to meet its prima facie burden. Contrary to the opinion of Wyckoff's medical expert, the medical......
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Sessa v. Peconic Bay Med. Ctr.
... ... rebut any such allegations contained in the complaint and the ... bill of particulars" (Mitchell v. Goncalves, ... 179 A.D.3d 787, 789; see Sheppard v. Brookhaven Mem ... Hosp. Med. Ctr., 171 A.D.3d at 1235; see also ... ...
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