Kim A. Pagano, appellant, Jason P. Cohen, etc., et al., respondents, et al., defendants. Index No. 8267/13
E. Tangredi, White Plains, NY (Stephen Chakwin of counsel),
Elser Moskowitz Edelman & Dicker LLP, White Plains, NY
(Alan B. Friedberg of counsel), and Spolzino Smith Buss &
Jacobs, LLP, White Plains, NY (Robert A. Spolzino of
counsel), for respondents.
D. SCHEINKMAN, P.J., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY,
LINDA CHRISTOPHER, JJ.
DECISION & ORDER
action, inter alia, to recover damages for medical
malpractice, the plaintiff appeals from an order of the
Supreme Court, Orange County (Sandra B. Sciortino, J.),
dated. The order, insofar as appealed from, granted the
motion of the defendants Jason P. Cohen, Alyssa Ludwin, and
ENT and Allergy Associates, LLP, for summary judgment
dismissing the complaint insofar as asserted against them.
that the order is affirmed insofar as appealed from, with
plaintiff underwent surgery to remove her right parotid
gland. The surgery was performed by the defendant Jason P.
Cohen, a physician, and the plaintiff received postoperative
treatment by the defendant Alyssa Ludwin, a physician's
assistant. The plaintiff commenced this medical malpractice
action against, among others, Cohen, Ludwin, and their
employer, ENT and Allergy Associates, LLP (hereinafter
collectively the defendants), alleging that she developed
complex regional pain syndrome as a result of negligent
medical treatment by the defendants.
defendants moved for summary judgment dismissing the
complaint insofar as asserted against them. They argued that
the surgery was properly performed and the postoperative care
was appropriate. In response, the plaintiff argued that,
pursuant to the doctrine of resipsa loquitur, the finder of
fact should be able to infer negligence on the part of the
defendants. The Supreme Court granted the defendants'
motion, and the plaintiff appeals.
The requisite elements of proof in a medical malpractice
action are a deviation or departure from accepted community
standards of practice and evidence that such departure was a
proximate cause of injury or damage'" (Lesniak v
Stockholm Obstetrics & Gynecological Servs., P.C.,
132 A.D.3d 959, 960, quoting Geffner v North Shore Univ.
Hosp., 57 A.D.3d 839, 842). On a motion for summary
judgment dismissing a cause of action to recover damages for
medical malpractice, a defendant physician must establish,
prima facie, "either that there was no departure or that
any departure was not a proximate cause of the
plaintiff's injuries" (Lesniak v Stockholm
Obstetrics & Gynecological Servs., P.C., 132 A.D.3d
at 960; see Stukas v Streiter, 83 A.D.3d 18, 23). If
such a showing has been made, "a plaintiff must submit
evidentiary facts or materials to rebut the defendant's
prima facie showing, so as to demonstrate the existence of a
triable issue of fact" (Deutsch v Chaglassian,
71 A.D.3d 718, 719).
the defendants established their prima facie entitlement to
judgment as a matter of law through the detailed affidavit of
their expert physician, who specializes in otolaryngology.
The defendants' expert opined that neither Cohen nor
Ludwin departed from the applicable standard of care. The
expert further opined that, regardless of the cause of the
plaintiff's current condition, it did not result from any
negligence on the part of Cohen or Ludwin.
opposition to the defendants' motion, the plaintiff
relied on the doctrine of res ipsa loquitur. To rely on that
doctrine, a plaintiff must show that "(1) the event is
of the kind that ordinarily does not occur in the absence of
someone's negligence; (2) the instrumentality that caused
the injury is within the defendants' exclusive control;
and (3) the injury is not the result of any voluntary action
by the plaintiff" (McCarthy v Northern Westchester
Hosp., 139 A.D.3d 825, 827). A plaintiff "need not
conclusively eliminate the possibility of all other causes of
the injury" (Kambat v St. Francis Hosp., 89
N.Y.2d 489, 494; see McCarthy v Northern Westchester
Hosp., 139 A.D.3d at 827). A plaintiff must only show
that the likelihood of other possible causes of the injury is
so reduced" that the greater probability lies at
defendant's door'" (Kambat v St. Francis
Hosp., 89 N.Y.2d at 495, quoting 2 Harper and James,
Torts § 19.7, at 1086).
the redacted and unsigned affirmation of the plaintiff's
medical expert was not entitled to consideration (see
France v Packy, 121 A.D.2d 836, 838) and, in any event,
was insufficient to raise a triable issue of fact. The
plaintiff failed to raise a triable issue of fact regarding
the applicability of the doctrine of resipsa loquitur, as she
did not demonstrate that the injury is of a kind that
ordinarily does not occur in the absence of negligence or
that the instrumentality that caused her injury was within
the defendants' exclusive control (see McCarthy v
Northern Westchester Hosp., 139 A.D.3d at 827-828).
Accordingly, we agree with the Supreme Court's