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Stucchio v. Bikvan

Supreme Court of New York, Second Department

November 1, 2017

Anthony Stucchio, an infant under the age of 14 years by his mother and natural guardian, Tania Hernandez, et al., respondents,
v.
Svetlana Bikvan, etc., et al., defendants, New York Methodist Hospital, et al., appellants. (Index No. 25356/05)

          Argued - September 25, 2017

         D53767 M/hu

          Aaronson Rappaport Feinstein & Deutsch, LLP, New York, NY (Steven C. Mandell of counsel), for appellants New York Methodist Hospital and Park Slope Emergency Physician Service, P.C.

          Patrick F. Adams, PLLC, New York, NY (Juan C. Gonzalez of counsel), for appellant Hady G. Oghia.

          The Lambrou Law Firm, P.C., New York, NY (James Trainer and Lambros Y. Lambrou of counsel), for respondents.

          MARK C. DILLON, J.P. RUTH C. BALKIN L. PRISCILLA HALL HECTOR D. LASALLE, JJ.

          DECISION & ORDER

         Appeals from an order of the Supreme Court, Kings County (Laura Jacobson, J.), dated May 5, 2015. The order, insofar as appealed from, denied those branches of the motion of the defendants Svetlana Bikvan, Lawrence Melniker, New York Methodist Hospital, and Park Slope Emergency Physician Service, P.C., which were for summary judgment dismissing the complaints insofar as asserted against the defendants New York Methodist Hospital and Park Slope Emergency Physician Service, P.C., respectively, and denied the separate motion of the defendant Hady G. Oghia for summary judgment dismissing the complaint asserted against him.

         ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the plaintiffs payable by the appellants appearing separately and filing separate briefs.

         The infant plaintiff, by his mother and natural guardian, and his mother, individually, commenced three actions, which were subsequently consolidated, against, among others, the defendants Hady G. Oghia, New York Methodist Hospital (hereinafter Methodist), and Park Slope Emergency Physician Service, P.C. (hereinafter Park Slope; hereinafter collectively the appellants), alleging medical malpractice regarding the care they provided the infant plaintiff in December 2003. The plaintiffs alleged that as a result of the appellants' medical malpractice, the child was belatedly diagnosed with a ruptured appendix and abscesses that had formed within the abdominal cavity. The plaintiffs further alleged that the ruptured appendix and subsequent surgical procedures to clean out the infection were the proximate causes of the development of a kidney abscess in October 2004, which ultimately required a nephrectomy. Methodist and Park Slope appeal from so much of an order of the Supreme Court as denied those branches of their motion, made jointly with other defendants, which were for summary judgment dismissing the respective complaints insofar as asserted against them. Oghia separately appeals from so much of the same order as denied his separate motion for summary judgment dismissing the complaint asserted against him.

         "In an action sounding in medical malpractice, a defendant moving for summary judgment must make a prima facie showing either that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the patient's injuries" (Matos vKhan, 119 A.D.3d 909, 910; see Guctas vPessolano, 132 A.D.3d 632, 633; Poter v Adams, 104 A.D.3d 925, 926; Salvia v St. Catherine of Sienna Med. Ctr., 84 A.D.3d 1053, 1053-1054; Heller v Weinberg, 77 A.D.3d 622, 622-623). Once the defendant has made such a showing, the plaintiff, in opposition, must submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden (see Guctas v Pessolano, 132 A.D.3d at 633; Poter v Adams, 104 A.D.3d at 926; Stukas v Streiter, 83 A.D.3d 18, 23-24).

         Here, the appellants met their prima facie burden by submitting the affirmations of their experts, who opined that the alleged departures from accepted medical practice resulting in a ruptured appendix were not a proximate cause of the infant plaintiffs subsequent kidney infection 10 months later (see Weingarten v St. Vincent's Hosp. & Med. Ctr., 148 A.D.3d 1211, 1212; Contreras v Adeyemi, 102 A.D.3d 720, 721). In opposition, however, the plaintiffs raised triable issues of fact by submitting the affirmation of a medical expert, who opined, inter alia, that the kidney abscess was caused by a walled-off hematoma left over from the open appendectomy that had become infected months later. Conflicting expert opinions raise credibility issues which are to be resolved by the factfinder (see Guctas v Pessolano, 132 A.D.3d at 633; Loaiza v Lam, 107 A.D.3d 951, 953; Roca v Perel, 51 A.D.3d 757, 759). Contrary to the appellants' contentions, the affirmation of the plaintiffs' expert was not deficient by reason of the redaction of the expert's name, since "'[t]he unredacted original was offered to the court for . . . in camera inspection, as is required'" (Turi v Birk, 118 A.D.3d 979, 980, quoting Cerny v Williams, 32 A.D.3d 881, 886; see Marano v Mercy Hosp., 241 A.D.2d 48, 50). Furthermore, the affirmation satisfied the requirements of CPLR 2106(a).

         Accordingly, the Supreme Court properly denied summary ...


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