Tomeo v. Beccia

• Decision Date: 22 April 2015
• Docket Number: 2013-03424, Index No. 7247/07.
• Citation: 127 A.D.3d 1071,7 N.Y.S.3d 472,2015 N.Y. Slip Op. 03350
• Parties: Alaina TOMEO, respondent, v. David BECCIA, etc., et al., defendants, Jason L. Schneider, etc., et al., appellants.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 1071

7 N.Y.S.3d 472

2015 N.Y. Slip Op. 03350

Alaina TOMEO, respondent

v. David BECCIA, etc., et al., defendantsJason L. Schneider, etc., et al., appellants.

2013-03424, Index No. 7247/07.

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

April 22, 2015.

Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and Lauren J. Daniels of counsel), for appellants Jason L. Schneider and Island Surgical and Vascular Group, P.C.

Bower Law P.C., Uniondale, N.Y. (Michael J. Napoli, Jr., and Anina H. Monte of counsel), for appellant Good Samaritan Hospital.

Davis & Ferber (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum ], of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

Opinion

In an action to recover damages for medical malpractice, the defendants Jason L. Schneider and Island Surgical and Vascular Group, P.C., appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Mayer, J.), dated January 29, 2013, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them, and the defendant Good Samaritan Hospital separately appeals, as limited by its brief, from so much of the same order as denied its separate motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from by the defendants Jason L. Schneider and Island Surgical and Vascular Group, P.C.; and it is further,ORDERED that the order is reversed insofar as appealed from by the defendant Good Samaritan Hospital, and the motion of that defendant for summary judgment dismissing the complaint insofar as asserted against it is granted; and it is further,

ORDERED that one bill of costs is awarded to the defendant Good Samaritan Hospital, payable by the plaintiff, and one bill of costs is awarded to the plaintiff, payable by the defendants Jason L. Schneider and Island Surgical and Vascular Group, P.C.

The Supreme Court properly denied the motion of the defendants Jason L. Schneider and Island Surgical and Vascular Group, P.C. (hereinafter Island), for summary judgment dismissing the complaint insofar as asserted against them. Schneider and Island failed to make a prima facie showing that they did not depart from good and accepted medical practice or, if there was a departure, that the plaintiff was not injured thereby (see Ahmed v. Pannone, 116 A.D.3d 802, 984 N.Y.S.2d 104 ; Poter v. Adams, 104 A.D.3d 925, 961 N.Y.S.2d 556 ; Bendel v. Rajpal, 101 A.D.3d 662, 955 N.Y.S.2d 187 ). The affidavit of their expert, Dr. Robert Ward, was conclusory. Ward failed to set forth the applicable standard of care. He merely recounted the treatment rendered, and opined, in a conclusory manner, that such treatment did not represent a departure from good and accepted medical practice (see Barlev v. Bethpage Physical Therapy Assoc., P.C., 122 A.D.3d 784, 995 N.Y.S.2d 514 ; Walker v. Saint Vincent Catholic Med. Ctrs., 114 A.D.3d 669, 979 N.Y.S.2d 697 ; Ocasio–Gary v. Lawrence Hosp., 69 A.D.3d 403, 894 N.Y.S.2d 11 ; Johnson v. Queens–Long Is. Med. Group, P.C., 23 A.D.3d 525, 806 N.Y.S.2d 614 ; Williams v. Howe, 297 A.D.2d 671, 747 N.Y.S.2d 251 ). Ward's affidavit was insufficient to refute the allegations set forth in the plaintiff's bill of particulars (see Bendel v. Rajpal, 101 A.D.3d at 663, 955 N.Y.S.2d 187 ; Faicco v. Golub, 91 A.D.3d 817, 938 N.Y.S.2d 105 ). Furthermore, Ward's opinion as to causation was also merely stated in conclusory terms (see LeMaire v. Kuncham, 102 A.D.3d 659, 957 N.Y.S.2d 732 ). In light of this determination, it is unnecessary to review the sufficiency of the plaintiff's opposition to the motion of Schneider and Island for summary judgment (see Barlev v. Bethpage Physical Therapy Assoc., P.C., 122 A.D.3d at 784, 995 N.Y.S.2d 514 ; Faicco v. Golub, 91 A.D.3d at 818, 938 N.Y.S.2d 105 ).

The Supreme Court, however, erred in denying the separate motion of the defendant Good Samaritan Hospital (hereinafter Good Samaritan) for summary judgment dismissing the complaint insofar as asserted against it. The plaintiff's contention that certain medical records submitted by Good Samaritan were uncertified and, therefore, inadmissible, is not properly before this Court, as she failed to raise it before the Supreme Court in opposition to the motion. The plaintiff does not challenge the accuracy or veracity of the uncertified records and, in fact, she and her expert relied upon those records in opposition to the defendants' motions (see Carlton v. St. Barnabas Hosp., 91 A.D.3d 561, 937 N.Y.S.2d 57 ; see also Ward v. Lincoln Elec. Co., 116 A.D.3d 558, 983 N.Y.S.2d 718 ). Furthermore, although the transcript of Schneider's deposition provided by Good Samaritan was double-sided and, therefore, not in compliance with 22 NYCRR 202.5, such a mistake, omission, defect, or irregularity should have been disregarded, because a substantial right of a party was not prejudiced (see CPLR 2001 ). Under the circumstances presented here, the court erred in finding that Schneider's deposition transcript was not in admissible form.

Good Samaritan established its prima facie entitlement to judgment as a matter of law through the deposition testimony of the several parties, the medical records, and the expert affirmation of Dr. Irwin Ingwer (see Farrell v. Herzog, 123 A.D.3d 655, 998 N.Y.S.2d 202 ; France v. Packy, 121 A.D.3d 836, 994 N.Y.S.2d 364 ). Ingwer's affirmation was based on evidence in the record, and was not conclusory or unsubstantiated (see Mills v. Department of Educ. of City of N.Y., 109 A.D.3d 643, 970 N.Y.S.2d 879 ; Shields v. Baktidy, 11 A.D.3d 671, 783 N.Y.S.2d 652 ).

“In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee, and may not be held concurrently liable unless its...