Pizzo-Juliano v. Southside Hosp.
| Decision Date | 03 June 2015 |
| Docket Number | 2014-03274 |
| Citation | 129 A.D.3d 695,2015 N.Y. Slip Op. 04626,10 N.Y.S.3d 572 |
| Parties | Paul PIZZO–JULIANO, etc., et al., respondents, v. SOUTHSIDE HOSPITAL, et al., defendants, Edward John Bieniewicz, etc., appellant. |
| Court | New York Supreme Court — Appellate Division |
129 A.D.3d 695
10 N.Y.S.3d 572
2015 N.Y. Slip Op. 04626
Paul PIZZO–JULIANO, etc., et al., respondents
v.
SOUTHSIDE HOSPITAL, et al., defendants
Edward John Bieniewicz, etc., appellant.
2014-03274
Supreme Court, Appellate Division, Second Department, New York.
June 3, 2015.
Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G. Christesen of counsel), for appellant.
Richard Lavorata, Jr., Lindenhurst, N.Y., for respondents.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.
Opinion
In an action, inter alia, to recover damages for medical malpractice, the defendant Edward John Bieniewicz appeals from an order of the Supreme Court, Suffolk County (Asher, J.), dated December 23, 2013, which denied his motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against him.
ORDERED that the order is affirmed, with costs.
In April 2004, the plaintiff Paul Pizzo–Juliano (hereinafter the infant plaintiff), then two years of age, was bitten on his face by a dog and was taken to the emergency room at Southside Hospital. During the course of several hours in the emergency room, the infant plaintiff's wound was irrigated with saline by emergency room staff while they waited for a plastic surgeon to arrive. The on-call plastic surgeon was the defendant Edward John Bieniewicz (hereinafter the defendant). However, the defendant, who allegedly was on Fire Island at the time, never came to the hospital and a physician's assistant sutured the infant plaintiff's face.
The infant plaintiff, by his mother Vicki Pizzo, and the mother individually (hereinafter together the plaintiffs), commenced an action against Southside Hospital and North Shore–Long Island Health System, and commenced a separate action against the defendant. The Supreme Court consolidated the actions. The plaintiffs allege, inter alia, that the defendant had a duty as the on-call plastic surgeon for Southside Hospital to
evaluate and treat emergency room patients and that his failure to do so resulted in the infant plaintiff's wounds being sutured by a physician's assistant, resulting in scarring, pain, and suffering. After depositions of the infant plaintiff's mother and the emergency room physician were conducted, but before the defendant was deposed, the defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court denied the motion. The defendant appeals.
“In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Shaffer v. Gilberg, 125 A.D.3d 632, 634, 4 N.Y.S.3d 49 ). “ ‘A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion...
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