Stukas v. Streiter

• Citation: 918 N.Y.S.2d 176,83 A.D.3d 18
• Parties: Robert STUKAS, etc., appellant, v. Michael STREITER, et al., respondents.
• Decision Date: 08 March 2011
• Court: New York Supreme Court Appellate Division

918 N.Y.S.2d 176 83 A.D.3d 18 Robert STUKAS, etc., appellant, v. Michael STREITER, et al., respondents. Supreme Court, Appellate Division, Second Department, New York. March 8, 2011.

[83 A.D.3d 177]

APPEAL by the plaintiff, in an action, inter alia, to recover damages for medical malpractice, etc., from an order of the Supreme Court (Paul K. Baisley, Jr., J.), dated December 9, 2008, and entered in Suffolk County, which granted the defendants' motion for leave to reargue their motion for summary judgment dismissing the amended complaint, which had been determined in an order dated March 19, 2008, and, upon reargument, in effect, vacated the determination in the order dated March 19, 2008, denying the defendants' motion for summary judgment dismissing the amended complaint, and thereupon granted the defendants' motion for summary judgment dismissing the amended complaint. Presiding Justice Prudenti has been substituted for the late Justice Fisher (see 22 NYCRR 670.1[c] ).

Weitz Kleinick & Weitz (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brain J. Isaac, Michael H. Zhu, and Jillian Rosen], of counsel), for appellant.

Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, N.Y. (Valerie Froehlich of counsel), for respondents.

A. GAIL PRUDENTI, P.J., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.

[83 A.D.3d 178]

LEVENTHAL, J.

The issue presented for our review is whether, in a medical malpractice action where a defendant physician moves for summary judgment and makes only a prima facie showing that he or she did not depart from good and accepted medical practice, the plaintiff, in order to defeat summary judgment, must raise a triable issue of fact not only as to this element of a medical malpractice cause of action, but as to causation as well. Although decisions of this Court have, on occasion, included language indicating an affirmative answer to this question, we now clarify the proper standard to be applied in determining motions for summary judgment, including those made in medical malpractice actions, and hold that no such requirement exists.

Factual and Procedural Background

After Barbara Stukas (hereinafter Stukas) noticed a lump in her left armpit, in January 2000, a physician referred her for a CT scan and mammography. That CT scan was conducted at the defendant Huntington Hospital. The defendant Michael Streiter, a radiologist, read the CT scan. Streiter interpreted the scan as negative, and reported his findings to Stukas's referring physician. The mammogram was also interpreted as negative a few weeks later by a nonparty radiologist. In the summer of 2001, Stukas was diagnosed with stage-4 breast cancer.

In December 2001 Stukas and her husband commenced this action, inter alia, to recover damages for medical malpractice against Streiter and Huntington Hospital (hereinafter together the defendants). In the pleadings, it was alleged that Streiter departed from good and accepted standards in failing to diagnose Stukas's breast cancer, and that Huntington Hospital was vicariously liable for Streiter's medical malpractice. In July 2004 Stukas died. Stukas's husband, Robert Stukas (hereinafter the plaintiff), was thereafter appointed the administrator of her estate, the plaintiff, in his representative capacity, was substituted for Stukas pursuant to CPLR 1015(a), and the complaint was amended to reflect the substitution.

Following discovery, the defendants moved for summary judgment dismissing the amended complaint. In support of their motion, the defendants submitted an expert's affidavit attesting that Streiter did not depart from the applicable standard of care because his reading and interpretation of the films of the CT scan was correct. In opposition, the plaintiff submitted an affidavit from his own expert, opining that "Streiter departed from good and accepted standards of radiological practice and that these departures are the proximate cause and direct cause of the delay in diagnosis of [the decedent's] breast cancer."

In an order dated March 19, 2008, the Supreme Court denied the defendants' motion, concluding that, while the defendants established their prima facie entitlement to judgment as a matter of law, the plaintiff raised triable issues of fact as to whether the defendants departed from good and accepted standards of radiological care in interpreting the results of the CT scan. The Supreme Court reasoned that, in light of the existence of triable issues of fact relating to Streiter's departure from medical standards, it did not need to reach the issue of proximate cause.

The defendants then moved for leave to reargue their motion for summary judgment dismissing the amended complaint, arguing that the Supreme Court, in the order dated March 19, 2008, incorrectly concluded that it did not need to address the issue of causation, thereby misapprehending and misapplying the law. According to the defendants' counsel, the case of

[83 A.D.3d 179]

Thompson v. Orner, 36 A.D.3d 791, 828 N.Y.S.2d 509 set forth the applicable standard in this judicial department, which was that a defendant physician moving for summary judgment in an action alleging medical malpractice must establish, prima facie, either that there was no departure from applicable medical standards or that the departure was not a proximate cause of the plaintiff's injuries. The defendants' counsel argued that, under the holding in that case, a plaintiff, in response to such a prima facie showing, must nonetheless raise triable issues of fact as to both departure and proximate cause in order to defeat summary judgment. ( id.). Counsel argued that the affidavit of the plaintiff's expert on the issue of causation was insufficient and, as such, required dismissal of the amended complaint.

In an order dated December 9, 2008, the Supreme Court granted reargument and, upon reargument, concluded that, in opposition to the defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact as to proximate cause. The Supreme Court explained that it was granting reargument on the basis that it had "incorrectly concluded that it was not necessary to reach the issue of proximate cause." In reliance on what it perceived to be the applicable standard in this judicial department, the Supreme Court, upon reargument, granted the defendants' motion for summary judgment dismissing the amended complaint. The plaintiff appeals.

Discussion

The issue presented on this appeal is one that is essential to the fundamental jurisprudence of summary judgment in this state. New York's summary judgment procedure was created with the enactment, in 1921, of the Civil Practice Act, the precursor to the CPLR ( see Nelson, Civil Procedure in Twentieth-Century New York, 41 St. Louis Univ. LJ 1157, 1170-1171 [1997] ). As enacted in 1921, Rules 113 and 114 of the Rules of Civil Practice relating to summary judgment and partial summary judgment, respectively, provided for a summary judgment procedure of limited scope, which was available only to plaintiffs, and then only in certain enumerated actions ( id.).¹ Rule 113 was subsequently amended to apply to additional causes of action, and to allow both plaintiffs and defendants to move for summary judgment ( see e.g. 1933 Laws of N.Y., 156th Session, at app. 1743-1744). In 1959 an amendment was adopted which included language similar to that which now appears in CPLR 3212, and the language which had limited the procedure's availability to the enumerated actions was deleted ( see 1959 Laws of NY, 182nd Session, at app. 2269-2270; see also Siegel, Practice Commentaries, McKinney's Cons.

[83 A.D.3d 180]

Laws of N.Y., Book 7B, CPLR 3212:8, at 15 [2005 ed.] ).²

In 1963 the Legislature enacted the first version of the CPLR, and the now-familiar burden shifting procedure for determining motions for summary judgment was codified in CPLR 3212. That statute provides, in pertinent part, that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party," and the motion "shall be denied if any party shall show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b]; see Zuckerman v. City of New York, 49 N.Y.2d 557, 562-563, 427 N.Y.S.2d 595, 404 N.E.2d 718; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298). In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party ( see Pearson v. Dix McBride, LLC, 63 A.D.3d 895, 883 N.Y.S.2d 53). "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" ( Kolivas v. Kirchoff, 14 A.D.3d 493, 493, 787 N.Y.S.2d 392). Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues ( see Millerton Agway Coop. v. Briarcliff Farms, 17 N.Y.2d 57, 268 N.Y.S.2d 18, 215 N.E.2d 341).

Generally, the elements of a cause of action sounding in negligence are: (1) the existence of a duty on the defendant's part as to the plaintiff; (2) a breach of this duty; and (3) an injury to the plaintiff as a result thereof ( see Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 424 N.E.2d 531; Ingrassia v. Lividikos, 54 A.D.3d 721, 724, 864 N.Y.S.2d 449; Alvino v. Lin, 300 A.D.2d 421, 751 N.Y.S.2d 585). In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries ( see Gross v. Friedman, 73 N.Y.2d 721, 722-723, 535 N.Y.S.2d 586, 532 N.E.2d 92; Heller v....