Pettway v. Vorobyeva

• Decision Date: 23 February 2022
• Docket Number: 2019–05207,Index No. 850/15
• Citation: 202 A.D.3d 1116,159 N.Y.S.3d 909 (Mem)
• Parties: Debora PETTWAY, appellant, v. Larissa VOROBYEVA, etc., respondent.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 1116

159 N.Y.S.3d 909 (Mem)

Debora PETTWAY, appellant,

v.Larissa VOROBYEVA, etc., respondent.

2019–05207

Index No. 850/15

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

Argued—December 16, 2021

February 23, 2022

Krentsel & Guzman, LLP, New York, NY (Marcia K. Raicus of counsel), for appellant.

Silverson, Pareres & Lombardi, LLP, White Plains, NY (Rachel H. Poritz of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., ANGELA G. IANNACCI, REINALDO E. RIVERA, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated April 5, 2019. The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for medical malpractice after she allegedly suffered a second degree burn, caused by an electrocautery device, while undergoing a myomectomy to remove uterine fibroids. The defendant was a physician who assisted the primary surgeon during the procedure. After the completion of discovery, the defendant moved for summary judgment dismissing the complaint. By order dated April 5, 2019, the Supreme Court granted the defendant's motion. The plaintiff appeals.

"The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" ( Hayden v. Gordon, 91 A.D.3d 819, 820, 937 N.Y.S.2d 299 [internal quotation marks omitted]; see Scopelliti v. Westmed Med. Group, 193 A.D.3d 1009, 1010, 146 N.Y.S.3d 656 ). "On a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" ( Hayden v. Gordon, 91 A.D.3d at 820–821, 937 N.Y.S.2d 299 ; see Jacob v. Franklin Hosp. Med. Ctr., 188 A.D.3d 838, 840, 135 N.Y.S.3d 430, affd 36 N.Y.3d 1102, 144 N.Y.S.3d 412, 168 N.E.3d 389 ).

Where a defendant makes a prima facie showing, "the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact" as to the elements on which the defendant met the prima facie burden ( Donnelly v. Parikh, 150 A.D.3d 820, 822, 55 N.Y.S.3d 274 [internal quotation marks omitted]; see Mann v. Okere, 195 A.D.3d 910, 911, 150 N.Y.S.3d 306 ). "General and conclusory allegations of medical malpractice, however, unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant physician's summary judgment motion" ( Myers v. Ferrara, 56 A.D.3d 78, 84, 864 N.Y.S.2d 517 ; see J.P. v. Patel, 195 A.D.3d 852, 854, 150 N.Y.S.3d 120 ). "In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record" ( Tsitrin v. New York Community Hosp., 154 A.D.3d 994, 996, 62 N.Y.S.3d 506 [internal quotation marks omitted]).

Moreover, "[w]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered" ( Pinnock v. Mercy Med. Ctr., 180 A.D.3d 1088, 1090–1091, 119 N.Y.S.3d 559 [internal quotation marks omitted]; see DiLorenzo v. Zaso, 148 A.D.3d 1111, 1113, 50 N.Y.S.3d 503 ). "Where no such foundation is laid, the expert's opinion is of no probative value, and is therefore insufficient to meet a party's burden on a summary judgment motion" ( Laughtman v. Long Is. Jewish Val. Stream, 192 A.D.3d 677, 678, 143 N.Y.S.3d 97 ; see DiLorenzo v. Zaso, 148 A.D.3d at 1113, 50 N.Y.S.3d 503 ).

Here, the defendant established her prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting the expert affirmation of a board-certified obstetrician and...