Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S.
Ratner of counsel), for appellants.
Offices of Lawrence P. Biondi, Garden City (Lisa M. Comeau of
counsel), for respondent.
J.P., Andrias, Moskowitz, Kahn, JJ.
Supreme Court, New York County (Douglas E. McKeon, J.),
entered on or about October 15, 2015, which denied
defendant-appellants' motion for summary judgment
dismissing the complaint, and granted plaintiff's cross
motion to amend the bill of particulars, reversed, on the
law, without costs, the motion granted, and the cross motion
denied as academic. The Clerk is directed to enter judgment
in favor of defendants-appellants.
was born with a congenital condition, CHARGE syndrome, that
involves a constellation of symptoms, including ear
abnormality. She had preexisting bilateral hearing loss and a
significant underbite with an underdeveloped and asymmetric
jaw, resulting in the nonalignment of her teeth with the
midline of her face. Plaintiff and her family consulted with
Dr. Behrman, an oral and maxillofacial surgeon, concerning a
plan to correct the skeletal deformity, and plaintiff
consented to the elective double-jaw orthognathic surgery. In
her complaint and bill of particulars, plaintiff alleges
that, as a result of the surgery, she suffered further
hearing loss, numbness of lips, chin and lower facial areas,
as well as problems with her midline bite and posterior
met their prima facie burden in their summary judgment motion
with plaintiff's medical records, and the opinions of Dr.
Behrman and two experts, who addressed all theories of
negligence alleged in the bill of particulars. In particular,
their orthodontic expert opined that any problems with
plaintiff's midline misalignment and posterior occlusion
did not result from the surgery and, in any event, the 1 mm
mandible slide was de minimis and within the standard of
care. Defendants' expert otolaryngologist opined that,
while plaintiff may have suffered additional hearing loss,
there was no medical explanation therefor and that loss of
hearing was not a risk of orthognathic surgery. Dr. Behrman
opined that his presurgical disclosure of the risks and
benefits of the procedure, including the possibility of
sensory deficits, comported with the standard of care and
that hearing loss was not a foreseeable consequence of the
procedure, and that the infection that led to removal of
hardware had no functional consequence.
the defendants met their burden for summary judgment,
plaintiff was obligated to rebut defendant's prima facie
showing with medical evidence demonstrating that the
defendants departed from accepted medical practice
(Scalisi v Oberlander, 96 A.D.3d 106, 120 [1st Dept
2012]). Here, plaintiff failed to address the opinions of
defendants' experts or defendants' prima facie
showing that the result from the complicated, extensive
double jaw surgery was anything but a reasonable result.
Thus, there was no basis to preclude a grant of summary
judgment in favor of defendants (see Fernandez v
Moskowitz, 85 A.D.3d 566, 567-568 [1st Dept 2011]).
Instead, plaintiff proffered a new theory, based on the
report of an expert otolaryngologist, who opined that Dr.
Behrman had failed to take into account plaintiff's
primary immune deficiency in planning the surgery, that he
should have initially consulted with an immunologist who
would have performed testing before surgery, and that he
failed to refer plaintiff after surgery to an ENT doctor, who
would have consulted with an immunologist. Plaintiff's
expert asserted that these failures led to the development of
an infection, which caused plaintiff's hearing loss,
numbness, and teeth misalignment.
axiomatic that a plaintiff cannot defeat a summary judgment
motion that made out a prima facie case by merely asserting,
without more, a new theory of liability for the first time in
the opposition papers (see Abalola v Flower Hosp.,
44 A.D.3d 522, 522 [1st Dept 2007]). Since plaintiff's
opposition papers were insufficient absent this new theory of
recovery, defendants' summary judgment motion should have
been granted (see Ostrov v Rozbruch, 91 A.D.3d 147,
154 [1st Dept 2012]).
plaintiff's cross motion for leave to amend should have
been denied since defendants had no notice of plaintiff's
new claims, which were never mentioned in the pleadings or at
depositions (see e.g. Farris v Dupret, 138 A.D.3d
565, 566 [1st Dept 2016], lv denied 27 N.Y.3d 912');">27 N.Y.3d 912');">27 N.Y.3d 912');">27 N.Y.3d 912
). Plaintiff's new theory of malpractice is not
related to the claims in the pleadings. Rather,
plaintiff's theory of malpractice in the complaint and
bill of particulars is directed only to the surgical
procedure performed by Dr. Behrman and lack of informed
consent. There was no mention of any presurgical consultation
with an immunologist which Dr. Behrman failed to have. Nor
did plaintiff question Dr. Behrman at his deposition
regarding his treatment of her and planning for the surgery
concerning her underlying primary immune deficiency
condition. The isolated entry of "Primary Immune
Deficiency" made in the voluminous pages of medical
records did not place defendants on notice that they would be
defending against any claim based on this condition. The
dissent also overlooks that permitting the cross motion would
prejudice the defendants, who expended large sums of money
defending the action as pleaded, and planning their defense
accordingly. Nor does the dissent explain how we could ignore
the well settled law of this Department on this issue.
to the dissent's claim, the fact that a trial date had
not been set for this matter does not mean that granting the
cross motion would not significantly prejudice defendants.
From the inception of the case through the summary judgment
motion plaintiff never proceeded on her new immune deficiency
theory, and thus all of defendants' efforts in discovery
and motion practice did not consider this theory. To allow
plaintiff a chance to start over at this late stage of the
action, and in response to a summary judgment motion, would
be highly prejudicial. Further, plaintiff failed to oppose
the merits of defendants' prima facie showing on their
summary judgment motion, requiring the granting of the
motion, and the denial of plaintiff's cross motion.
this Court may search the record to find an issue of fact to
preclude summary judgment, we cannot search the record to
support a new theory of recovery that was never remotely put
forth by the plaintiff. Thus, contrary to the dissent's
position, the fact that plaintiff's primary immune
deficiency is generally mentioned in her medical records does
not permit her to raise this completely new theory - that Dr.
Behrman should have consulted with an immunologist - for the
first time in opposition to a summary judgment motion. While
the merits of plaintiff's new theory of recovery should
not be considered under these circumstances (see Keilany
B. v City of New York, 122 A.D.3d 424, 425 [1st Dept
2014]), we also find the proposed amendment lacks merit
(see Katechis v Our Lady of Mercy Med. Ctr., 36
A.D.3d 514, 516-517 [1st Dept 2007]), since the theory based
on primary immune deficiency is speculative and without
record support. Plaintiff's expert did not explain how
presurgical testing would have changed the result, and
advanced only conclusory opinions that a specific infection,
which occurred during her jaw surgery, was somehow the cause
of her hearing loss, neurological facial sensory deficits,
and teeth misalignment (see Foster-Sturrup v Long,
95 A.D.3d 726, 727-728 [1st Dept 2012]; Roques v
Noble, 73 A.D.3d 204, 207 [1st Dept 2010]).
the claim that defendant Behrman should have referred
plaintiff to an ENT after surgery is belied by the record
evidence showing that plaintiff was so referred. The
expert's opinion that risks related to primary immune
deficiency should have been disclosed is similarly deficient,
and unsupported by any opinion that a reasonable person so
informed would not have undergone the procedure (see
Public Health Law § 2805-d ).
concur except Moskowitz, J. who dissents in a ...