Monzon v. Chiaramonte

• Decision Date: 29 June 2016
• Citation: 140 A.D.3d 1126,35 N.Y.S.3d 371,2016 N.Y. Slip Op. 05124
• Parties: Alexa MONZON, appellant, v. Gregory CHIARAMONTE, M.D., P.C., et al., defendants, Sage C. Foote, etc., respondent. (Appeal Nos. 1 and 3) Alexa Monzon, appellant, v. Gregory Chiaramonte, M.D., P.C., et al., defendants, Alan M. Madell, etc., et al., respondents. (Appeal No. 2).
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1126

35 N.Y.S.3d 371

2016 N.Y. Slip Op. 05124

Alexa MONZON, appellant,

v.Gregory CHIARAMONTE, M.D., P.C., et al., defendants,Sage C. Foote, etc., respondent. (Appeal Nos. 1 and 3)

Alexa Monzon, appellant,

v.Gregory Chiaramonte, M.D., P.C., et al., defendants,Alan M. Madell, etc., et al., respondents. (Appeal No. 2).

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

June 29, 2016.

Pamela Gabiger, Poughkeepsie, N.Y., for appellant.

Santangelo Benvenuto & Slattery (James W. Tuffin, Islandia, N.Y., of counsel), for Sage C. Foote, respondent in Appeal Nos. 1 and 3.

Meiselman, Packman, Nealon, Scialabba & Baker P.C., White Plains, N.Y. (Richard J. Nealon of counsel), for Alan M. Madell and Chris D. Donikyan, respondents in Appeal No. 2, and for defendant Gregory Chiaramonte, M.D., P.C.

Feldman, Kleidman, Coffey, Sappe & Regenbaum, LLP, Fishkill, N.Y. ( Wayne M. Rubin of counsel), for St. Luke's Cornwall Hospital, respondent in Appeal No. 2.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, BETSY BARROS, and FRANCESCA E. CONNOLLY, JJ.

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated January 15, 2013, as granted that branch of the motion of the defendant Sage C. Foote pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her, (2) from a judgment of the same court entered March 17, 2014, which, upon the order dated January 15, 2013, is in favor of the defendant Sage C. Foote and against her dismissing the complaint insofar as asserted against that defendant, and (3) from an order of the same court dated April 3, 2014, which (a) granted the motion of the defendants Alan M. Madell and Chris D. Donikyan pursuant to CPLR 3126 and 3042 to dismiss the complaint insofar as asserted against them, and (b), upon granting that branch of the motion of the defendant St. Luke's Cornwall Hospital which was to strike her certificate submitted pursuant to CPLR 3012–a(c), conditionally granted that branch of the motion which was to dismiss the complaint insofar as asserted against that defendant, unless the plaintiff filed and served a certificate of merit pursuant to CPLR 3012–a(a)(1) within 30 days after notice of entry of the order upon the plaintiff's counsel.

ORDERED that the appeal from the order dated January 15, 2013, is dismissed; and it is further,

ORDERED that judgment is affirmed; and it is further,

ORDERED that the order dated April 3, 2014, is modified, on the law, by deleting the provision thereof granting the motion of the defendants Alan M. Madell and Chris D. Donikyan to dismiss the complaint insofar as asserted against them, and substituting therefor a provision denying that motion; as so modified, the order dated April 3, 2014, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendants Sage C. Foote and St. Luke's Cornwall Hospital payable by the plaintiff, and one bill of costs is awarded to the plaintiff payable by the defendants Alan M. Madell and Chris D. Donikyan.

The appeal from the order dated January 15, 2013, must be dismissed because the right of direct appeal therefrom terminated with the entry of the March 17, 2014, judgment in favor of the defendant Sage C. Foote (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 order are brought up for review and have been considered on the appeal from that judgment (see CPLR 5501[a][1] ).

The plaintiff alleges that the defendant St. Luke's Cornwall Hospital (hereinafter the hospital), the defendant Alan M. Madell, an emergency room physician, the defendant Chris D. Donikyan, a radiologist, and the defendant Sage C. Foote, a physician's assistant, committed medical malpractice by failing to properly diagnose and treat a fracture in her right knee. Along with the complaint, the plaintiff's attorney submitted a certificate pursuant to CPLR 3012–a(c), stating that the plaintiff intended to rely solely on the doctrine of res ipsa loquitur, and for that reason was not filing a certificate of merit pursuant to CPLR 3012–a(a). The hospital moved to strike the certificate filed by the plaintiff, asserting that the doctrine of res ipsa loquitur did not apply and that the plaintiff was required to file a certificate of merit pursuant to CPLR 3012–a(a)(1), and to dismiss the complaint unless the plaintiff filed a certificate of merit within 30 days. In an order dated April 3, 2014, the Supreme Court struck the certificate filed and conditionally granted the hospital's motion to dismiss the complaint. Madell and Donikyan moved pursuant to CPLR 3126 and 3042 to dismiss the complaint insofar as asserted against them, contending that the bills of particulars submitted by the plaintiff were insufficient. The court granted that motion in the same order. Foote moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of jurisdiction. In an order dated January 15, 2013, the court granted that branch of the motion, and a judgment dismissing the complaint against Foote was thereafter entered. The plaintiff appeals.

The Supreme Court did not err in conditionally granting that branch of the hospital's motion which was to dismiss the complaint insofar as asserted against it unless the plaintiff filed and served a certificate of merit pursuant to CPLR 3012–a(a)(1) within 30 days (see Dye v. Leve, 181 A.D.2d 89, 586 N.Y.S.2d 69 ). Cases such as this, which allege medical malpractice for failure to diagnose a condition or to render appropriate treatment, pertain to the level or standard of care expected of a physician in the community, and do not encompass matters within the ordinary knowledge and experience of laypersons (see Mosberg v. Elahi, 176 A.D.2d 710, 574 N.Y.S.2d 793, affd. 80 N.Y.2d 941, 590 N.Y.S.2d 866, 605 N.E.2d 353 ). The doctrine of res ipsa loquitur is therefore not applicable to this case (see Bin Xin Tan v. St. Vincent's Hosp. & Med. Ctr. of N.Y., 294 A.D.2d 122, 742 N.Y.S.2d 10 ). This case is not one of the narrow category of factually simple...