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Lipschitz v. Stein

August 11, 2009

AIDA LIPSCHITZ, ETC., APPELLANT-RESPONDENT,
v.
ARNOLD J. STEIN, RESPONDENT-APPELLANT.



In an action to recover damages for medical malpractice, etc., the plaintiff appeals, as limited by her brief, from (1) so much an order of the Supreme Court, Kings County (Levine, J.), dated January 3, 2006, as denied those branches of her motion which were to compel the further deposition of the defendant, and to disqualify the defendant's attorney, and granted that branch of the defendant's cross motion which was for a Frye hearing (see Frye v United States, 293 F 1013, 1014), and (2) so much of an order of the same court dated June 30, 2006, as, upon reargument, adhered to the original determination, and the defendant cross-appeals, as limited by his brief, from stated portions of the order dated June 30, 2006, which, inter alia, denied that branch of his cross motion which was for summary judgment dismissing the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

MARK C. DILLON, J.P., HOWARD MILLER, JOHN M. LEVENTHAL and CHERYL E. CHAMBERS, JJ.

(Index No. 47446/98)

DECISION & ORDER

ORDERED that the appeal from the order dated January 3, 2006, is dismissed, as that order was superseded by the order dated June 30, 2006, made upon reargument; and it is further,

ORDERED that on the Court's own motion, the appeal from the portion of the order dated June 30, 2006, which, upon reargument, adhered to so much of the original determination in the order dated January 3, 2006, as denied that branch of the plaintiff's motion which was to compel the further deposition of the defendant is dismissed, as that portion of the order is not appealable as of right and leave to appeal has not been granted (see Friedberg v Citiwide Auto Leasing, Inc., 8 AD3d 336; Garcia v Jomber Realty, 264 AD2d 809); and it is further,

ORDERED that the order dated June 30, 2006, is modified, on the law, by deleting the provision thereof, upon reargument, adhering to so much of the original determination in the order dated January 3, 2006, as granted that branch of the defendant's cross motion which was for a Frye hearing, and substituting therefor a provision, upon reargument, vacating so much of the order dated January 3, 2006, as granted that branch of the cross motion, and thereupon denying that branch of the cross motion; as so modified, the order dated June 30, 2006, is affirmed insofar as reviewed; and it is further,

ORDERED that the order dated June 30, 2006, is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

On November 10, 1997, Menachem Lipschitz, now deceased (hereinafter the decedent), underwent surgery performed by the defendant, Dr. Arnold J. Stein, to remove a cataract from his left eye. Although he woke up at home that night at 9:00 P.M. with severe pain, headache, nausea, and vomiting, he did not return to the doctor's office until the next morning, allegedly at 9:00 A.M. The defendant did not see the decedent until approximately 10:45 A.M., at which time the defendant administered medication and removed fluid from the eye in an effort to reduce pressure in it. The defendant failed to diagnose what was later found to be the cause of the symptoms -- endophthalmitis caused by an organism identified as bacillus cereus, an extremely aggressive bacteria. When the disease was diagnosed by doctors at Mount Sinai Hospital later that day, the decedent's vision could not be saved, and he underwent an evisceration of the eye two days later. This medical malpractice action ensued.

After trial, the jury found in the defendant's favor. As relevant here, the Supreme Court denied the decedent's motion to set aside the verdict as against the weight of the evidence and for a new trial. On his appeal from the ensuing judgment dismissing the complaint, finding that there had been "errors committed at the trial which could have affected the verdict and therefore [could not] be considered harmless" (Lipschitz v Stein, 10 AD3d 634, 635), this Court reversed, reinstated the complaint against the defendant, and granted the motion for a new trial.

Now, after extensive motion practice in the Supreme Court following our prior decision, the case is before us again with Aida Lipschitz substituted for the decedent as the plaintiff.

The plaintiff contends that the Supreme Court improvidently exercised its discretion in granting that branch of the defendant's cross motion which was for a Frye hearing (see ...


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