Scharlack v. Richmond Memorial Hosp.
| Decision Date | 02 July 1984 |
| Citation | 477 N.Y.S.2d 189,103 A.D.2d 739 |
| Parties | Jon Erik SCHARLACK, etc., Plaintiff, v. RICHMOND MEMORIAL HOSPITAL, Defendant; Leroy Schwartz, et al., Respondents; Lawrence Viola, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Bert W. Subin, P.C., New York City (Weinraub & Haines, New York City, of counsel), for appellants.
Jones, Hirsch & Bull, New York City (Gary D. Centola, of counsel), for defendant Richmond Memorial Hospital.
Schiavetti, Begos & Nicholson, New York City (Kenneth Mauro, of counsel), for respondents Leroy Schwartz and John Randall.
Before BRACKEN, J.P., and O'CONNOR, NIEHOFF and BOYERS, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action, defendants Viola and Weinstein appeal from an order of the Supreme Court, Richmond County, dated November 21, 1983, which denied their motion for summary judgment dismissing the complaint as against them and cross claims against them.
Order reversed, on the law, with one bill of costs payable by respondents and defendant Richmond Memorial Hospital, appearing separately and filing separate briefs, motion granted, and complaint as against appellants and cross claims against them dismissed.
Though possessed of sufficient knowledge to form a proper response to appellants' motion for summary judgment to at least suggest what medical malpractice appellants may have been guilty of, the codefendant physicians (respondents) failed to offer any indicia of medical proof in this regard. Respondents relied instead upon CPLR 3212 (subd. ) and asserted a need for pretrial discovery from the appellants in order to properly respond to their motion. The plaintiff, by his mother and guardian ad litem, has conceded in open court that the appellants, who were his mother's obstetricians, were not guilty of any malpractice which resulted in his brain damage, and would, instead, lay blame for damages which were incurred after his normal and healthy birth upon the pediatricians and the hospital staff which treated him immediately after his birth. Absent competent medical proof of how this otherwise normal child could have been rendered brain damaged as a result of prenatal care or a condition, we cannot say that a question of fact in this regard has been raised or that respondents have established a need for pretrial discovery from the appellants before this motion should be granted. Clearly, the respondents have failed to lay bare any proof available to them which...
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