Anthony Stucchio, an infant under the age of 14 years by his mother and natural guardian, Tania Hernandez, et al., respondents,
Svetlana Bikvan, etc., et al., defendants, New York Methodist Hospital, et al., appellants.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York, NY
(Steven C. Mandell of counsel), for appellants New York
Methodist Hospital and Park Slope Emergency Physician
Patrick F. Adams, PLLC, New York, NY (Juan C. Gonzalez of
counsel), for appellant Hady G. Oghia.
Lambrou Law Firm, P.C., New York, NY (James Trainer and
Lambros Y. Lambrou of counsel), for respondents.
C. DILLON, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, HECTOR D.
DECISION & ORDER
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.
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.
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.
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 v Khan, 119
A.D.3d 909, 910; see Guctas v Pessolano, 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).
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
plaintiff's 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
the Supreme Court properly denied summary ...