Moody v. Hmoud

• Decision Date: 24 March 2021
• Docket Number: 2017–06546, 2017–06547, 2017–09705,Index No. 7226/13
• Citation: 146 N.Y.S.3d 139,192 A.D.3d 1007
• Parties: Mykel Lavar MOODY, etc., et al., appellants, v. Talat HMOUD, etc., et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1007

146 N.Y.S.3d 139

Mykel Lavar MOODY, etc., et al., appellants,

v.Talat HMOUD, etc., et al., respondents, et al., defendants.

2017–06546, 2017–06547, 2017–09705

Index No. 7226/13

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

Argued—February 1, 2021

March 24, 2021

Law Offices of Murrell & Associates, LLC, New Windsor, N.Y. (Patricia L. Murrell of counsel), for appellants.

O'Connor McGuinness Conte Doyle Oleson Watson & Loftus, LLP, White Plains, N.Y. (Montgomery L. Effinger of counsel), for respondent Talat Hmoud.

Steinberg, Symer & Platt, LLP, Poughkeepsie, N.Y. (Carol C. Poles of counsel), for respondent Bon Secours Community Hospital.

Feldman, Kleidman, Coffey, Sappe & Regenbaum LLP, Fishkill, N.Y. (Marsha S. Weiss of counsel), for respondents Elizabeth George, Rocco Bassora, Jack Carleton, Syed Hussain, Guillermo Uy, Firas Hamdi, Tal Ronen, and Crystal Run Healthcare.

Catania, Mahon, Milligram & Rider, PLLC, Newburgh, N.Y. (Ari I. Bauer of counsel), for respondent Orange Regional Medical Center.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice, the plaintiffs appeal from (1) an order of the Supreme Court, Orange County (Catherine M. Bartlett, J.), dated May 16, 2017, (2) stated portions of an order of the same court, also dated May 16, 2017, and (3) an order of the same court dated July 19, 2017. The first order dated May 16, 2017, granted the separate motions of the defendant Talat Hmoud and the defendant Bon Secours Community Hospital for summary judgment dismissing the amended complaint insofar as asserted against each of them. The second order dated May 16, 2017, insofar as appealed from, granted that branch of the motion of the defendants Elizabeth George, Rocco Bassora, Jack Carleton, Syed Hussain, Guillermo Uy, Firas Hamdi, Tal Ronen, and Crystal Run Healthcare which was for summary judgment dismissing the amended complaint insofar as asserted against the defendants Rocco Bassora, Jack Carleton, Syed Hussain, Guillermo Uy, Firas Hamdi, and Tal Ronen. The order dated July 19, 2017, granted the separate applications of the defendant Elizabeth George, the defendant Crystal Run Healthcare, and the defendant Orange Regional Medical Center to dismiss the amended complaint insofar as asserted against each of them, in effect, for the plaintiffs’ failure to comply with CPLR 3101(d)(1)(i).

ORDERED that on the Court's own motion, the notice of appeal from the order dated July 19, 2017, is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the first order dated May 16, 2017, and the order dated July 19, 2017, are affirmed; and it is further,

ORDERED that the second order dated May 16, 2017, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

In April 2011, Renee Moody (hereinafter the decedent) was injured when a wooden deck collapsed beneath her, causing her leg to become wedged in the broken wood. The decedent was transported to the defendant Bon Secours Community Hospital (hereinafter BSCH), where her injured leg was treated by, among others, the defendant Talat Hmoud. Over the next four months, the decedent's health steadily worsened, and she was treated on numerous occasions by doctors at the defendants Crystal Run Healthcare (hereinafter CRHC) and Orange Regional Medical Center (hereinafter ORMC), including the defendant Elizabeth George, for pain in the decedent's leg, various infections, and other maladies. On August 27, 2011, the decedent died due to complications from renal failure, cardiovascular disease, and diabetes.

In April 2013, the plaintiffs commenced this action against, among others, Hmoud, George, CRHC, BSCH, and ORMC, alleging that the defendants deviated from the standard of care in the treatment of the decedent's injured leg and subsequent complications. In 2014, the plaintiffs filed an amended complaint adding as defendants Rocco Bassora, Jack Carleton, Syed Hussain, Guillermo Uy, Firas Hamdi, and Tal Ronen (hereinafter collectively the CRHC doctors). Thereafter, Hmoud, BSCH, and ORMC separately moved for summary judgment dismissing the amended complaint insofar as asserted against each of them, while CRHC, George, and the CRHC doctors together moved for the same relief.

In an order dated May 16, 2017, the Supreme Court granted the motions of Hmoud and BSCH. In a separate order, also dated May 16, 2017, the court, among other things, granted that branch of the motion of CRHC, George, and the CRHC doctors which was for summary judgment dismissing the amended complaint insofar as asserted against the CRHC doctors. The court did not decide ORMC's motion for summary judgment. On June 8, 2017, George, CRHC, and ORMC made separate applications to dismiss the amended complaint insofar as asserted against each of them, in effect, for the plaintiffs’ failure to serve expert disclosures pursuant to CPLR 3101(d)(1)(i). In an order dated July 19, 2017, the court granted those applications. The plaintiffs appeal.

" ‘A defendant seeking summary judgment in a medical malpractice action bears the initial burden of establishing, prima facie, either that there was no departure from the applicable standard of care, or that any alleged departure did not proximately cause the plaintiff's injuries. In opposition, the plaintiff must demonstrate the existence of a triable issue of fact as to the elements with respect to which the defendant has met its initial burden’ " ( Kiernan v. Arevalo–Valencia, 184 A.D.3d 727, 728, 126 N.Y.S.3d 205, quoting Michel v. Long Is. Jewish Med. Ctr., 125 A.D.3d 945, 945–946, 5 N.Y.S.3d 162 ). "Although conflicting expert opinions may raise credibility issues which can only be resolved by a jury, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact" ( Wagner v. Parker, 172 A.D.3d 954, 955, 100 N.Y.S.3d 280 [citations omitted]).

Here, Hmoud and BSCH established their prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against each of them by submitting the affidavits of their experts, who concluded, inter alia, that Hmoud and BSCH did not deviate from the applicable standards of care in their treatment of the decedent,...