Nisanov v. Khulpateea

• Citation: 27 N.Y.S.3d 663,137 A.D.3d 1091
• Parties: Natan NISANOV, etc., respondent, v. Neekianund KHULPATEEA, etc., appellant, et al., defendant.
• Decision Date: 23 March 2016
• Court: New York Supreme Court Appellate Division

137 A.D.3d 1091
27 N.Y.S.3d 663

Natan NISANOV, etc., respondent,
v.
Neekianund KHULPATEEA, etc., appellant, et al., defendant.

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

March 23, 2016.

27 N.Y.S.3d 664

Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Elliott J. Zucker of counsel), for appellant.

Mark M. Basichas & Associates, P.C., New York, N.Y. (Aleksey Feygin of counsel), for respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, ROBERT J. MILLER, and BETSY BARROS, JJ.

27 N.Y.S.3d 665

In an action to recover damages for medical malpractice, lack of informed consent, and wrongful death, etc., the defendant Neekianund Khulpateea appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated January 10, 2014, as denied his motion for summary judgment dismissing the amended complaint insofar as asserted against him.

ORDERED that the order is modified, on the law, by deleting the provision thereof, in effect, denying that branch of the motion of the defendant Neekianund Khulpateea which was for summary judgment dismissing, as time-barred, so much of the amended complaint insofar as asserted against him as was based upon alleged acts of medical malpractice and lack of informed consent occurring prior to November 24, 2004, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff is the widower of the decedent, Esther Nisanov (hereinafter the decedent). On several occasions throughout 2003 and 2004, the decedent presented to her gynecologist, the defendant Inna Lopatinsky, with complaints of, inter alia, severe abdominal pain. On May 12, 2004, Lopatinsky discovered that the decedent had enlarged ovaries, and a sonogram taken that day revealed a thickening of the endometrial wall. Lopatinsky referred the decedent to the defendant Neekianund Khulpateea, a gynecological oncologist. On September 7, 2004, Khulpateea performed a hysteroscopic polypectomy on the decedent. He removed a polyp from the uterine cavity, which was found to be benign. On September 24, 2004, Khulpateea met with the decedent and told her to return to Lopatinsky for regular follow-up care.

Thereafter, the decedent continued to experience pain. Lopatinsky referred the decedent for another ultrasound, which revealed fluid in the endometrial cavity and no adnexal masses, but the ovaries were not visualized. In September 2005, Lopatinsky referred the decedent to Khulpateea again because she continued to complain of vaginal bleeding and lower abdominal and back pain. On September 2, 2005, Khulpateea performed an endometrial biopsy on the decedent, which revealed a "weakly proliferative endometrium." He also performed an examination on the decedent, which he found to be "unremarkable." He advised the decedent to have another pelvic and transvaginal sonogram in three months, and if the fluid reaccumulated or she bled again, he would perform a hysteroscopy. On November 30, 2005, the decedent underwent another ultrasound, which revealed a mass on the left adnexa. In December 2005, the decedent underwent a total abdominal hysterectomy and bilateral salpingo-oophorectomy, and was diagnosed with stage IIIC fallopian tube carcinoma. The decedent died on September 18, 2009.

On May 24, 2007, the plaintiff and the decedent commenced this action against Khulpateea and Lopatinsky alleging, inter alia, medical malpractice and lack of informed consent. Subsequently, the plaintiff served an amended complaint reflecting the decedent's death and asserting an additional cause of action to recover damages for wrongful death. The plaintiff alleged, among other things, that Khulpateea had failed to timely diagnose and treat the decedent's fallopian tube cancer, which resulted in the spread of the disease and her eventual death. Khulpateea and Lopatinsky separately moved for summary judgment dismissing the amended complaint insofar as asserted against each of

27 N.Y.S.3d 666

them. The Supreme Court denied the motions. Khulpateea appeals.

In support of his motion, Khulpateea established, prima facie, that so much of the amended complaint insofar as asserted against him as was based on alleged acts...