Swezey v. Montague Rehab & Pain Management, P.C.

• Decision Date: 03 February 2009
• Docket Number: 2008-00805.
• Citation: 59 A.D.3d 431,2009 NY Slip Op 00676,872 N.Y.S.2d 199
• Parties: MARIA SWEZEY, Respondent, v. MONTAGUE REHAB & PAIN MANAGEMENT, P.C., et al., Defendants, and EAST COAST ACUPUNTURE SERVICES, P.C., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

59 A.D.3d 431

872 N.Y.S.2d 199

2009 NY Slip Op 00676

MARIA SWEZEY, Respondent, v. MONTAGUE REHAB & PAIN MANAGEMENT, P.C., et al., Defendants, and EAST COAST ACUPUNTURE SERVICES, P.C., et al., Appellants.

2008-00805.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided February 3, 2009.

In a consolidated action to recover damages for medical malpractice, the defendants East Coast Acupuncture Services, P.C., and John Iozzio appeal, and the defendant Carlos A. Garcia, and the defendants Chun-Yuan Li and Raksana Khanukaeva separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), entered December 26, 2007, as denied their respective motions for summary judgment dismissing the complaint insofar as asserted against each of them, and the defendants Michael Genco Chiropractic, P.C., and Michael Genco, D.C., P.C., separately appeal, as limited by their brief, from so much of the same order as denied that branch of their separate motion which

was for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from by the defendants East Coast Acupuncture Services, P.C., and John Iozzio, and separately appealed from by the defendants Chun-Yuan Li and Raksana Khanukaeva and the defendants Michael Genco Chiropractic, P.C., and Michael Genco, D.C., P.C., on the law, and the respective motions of the defendants East Coast Acupuncture Services, P.C., and John Iozzio, and the defendants Chun-Yuan Li and Raksana Khanukaeva for summary judgment dismissing the complaint insofar as asserted against each of them, and that branch of the separate motion of the defendants Michael Genco Chiropractic, P.C., and Michael Genco, D.C., P.C., which was for summary judgment dismissing the complaint insofar as asserted against them are granted; and it is further,

Ordered that the order is affirmed insofar as separately appealed from by the defendant Carlos A. Garcia; and it is further,

Ordered that one bill of costs is awarded to the defendants East Coast Acupuncture Services, P.C., and John Iozzio, the defendants Chun-Yuan Li and Raksana Khanukaeva, and the defendants Michael Genco Chiropractic, P.C., and Michael Genco, D.C., P.C., appearing separately and filing separate briefs, payable by the plaintiff; and it is further,

Ordered that one bill of costs is awarded to the plaintiff payable by the defendant Carlos A. Garcia.

The plaintiff underwent surgery on November 1, 1999 to remove a needle that was lodged in the right ventricle of her heart. The needle was revealed by a chest X ray which was taken after the plaintiff sought medical treatment at Elmhurst Hospital. Following her surgery, the plaintiff commenced an action against various chiropractors and acupuncturists, including the defendants East Coast Acupuncture Services, P.C. (hereinafter East Coast), John Iozzio, Chun-Yuan Li, Raksana Khanukaeva, and Michael Genco Chiropractic, P.C., and Michael Genco, D.C., P.C. (hereinafter together the Genco corporations), alleging, inter alia, that they had negligently caused an acupuncture or EMG needle to become lodged in her chest. The plaintiff also commenced a second action, later consolidated with the first, against several physicians, including the defendant Carlos A. Garcia, alleging, inter alia, that he misdiagnosed and mismanaged her medical complaints. East Coast and Iozzio, Li and Khanukaeva, the Genco corporations, and Garcia all thereafter separately moved for summary judgment dismissing the complaint insofar as asserted against each of them.

The Supreme Court properly denied Garcia's motion for summary judgment dismissing the complaint insofar as asserted against him. "On a motion for summary judgment in a medical malpractice action, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice, or that the plaintiff was not injured thereby" (Germaine v Yu, 49 AD3d 685, 686 [2008], quoting Shahid v New York City Health & Hosps. Corp., 47 AD3d 800, 801 [2008]). If the defendant doctor sustains this burden, in order to defeat summary judgment "a plaintiff must submit a physician's affidavit of merit attesting to a departure from accepted practice and containing the attesting doctor's opinion that the defendant's...