Opinion
2013-02204
12-03-2014
Kyle FARRELL, etc., respondent-appellant, v. David M. HERZOG, etc., et al., defendants, Michael A. Schirripa, etc., appellant, Nick G. Faraci, etc., et al., respondents.
Gerspach Sikoscow LLP, New York, N.Y. (Mary E. Pearson of counsel), for appellant. Kramer, Dillof, Livingston & Moore, New York, N.Y. (Matthew Gaier of counsel), for respondent-appellant. Geisler Henninger & Fitzmaurice LLP, Mineola, N.Y. (Stacy Fitzmaurice of counsel), for respondents.
Gerspach Sikoscow LLP, New York, N.Y. (Mary E. Pearson of counsel), for appellant.
Kramer, Dillof, Livingston & Moore, New York, N.Y. (Matthew Gaier of counsel), for respondent-appellant.
Geisler Henninger & Fitzmaurice LLP, Mineola, N.Y. (Stacy Fitzmaurice of counsel), for respondents.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.
Opinion In an action to recover damages for medical malpractice, the defendant Michael A. Schirripa appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated December 19, 2012, as denied his cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him and the plaintiff cross-appeals from so much of the same order as granted those branches of the motion of the defendants Nick G. Faraci, Linda DiToro, Comprehensive Pediatrics, P.C., and Faraci, Faraci & DiToro, Physicians, P.C., which were for summary judgment dismissing the complaint insofar as asserted against the defendants Nick G. Faraci, Linda DiToro, and Faraci, Faraci & DiToro, Physicians, P.C.
ORDERED that the order is reversed insofar as cross-appealed from, on the law, and those branches of the motion of the defendants Nick G. Faraci, Linda DiToro, Comprehensive Pediatrics, P.C., and Faraci, Faraci & DiToro, Physicians, P.C., which were for summary judgment dismissing the complaint insofar as asserted against the defendants Nick G. Faraci, Linda DiToro, and Faraci, Faraci & DiToro, Physicians, P.C., are denied; and it is further,
ORDERED that the order is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff, payable by the appellant and the respondents appearing separately and filing separate briefs.
“The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury” (Faicco v. Golub, 91 A.D.3d 817, 818, 938 N.Y.S.2d 105 [internal quotation marks omitted]; see Schofield v. Edward B. Borden, M.D., P.C., 117 A.D.3d 936, 986 N.Y.S.2d 215 ; Mancuso v. Friscia, 108 A.D.3d 748, 970 N.Y.S.2d 77 ; Roca v. Perel, 51 A.D.3d 757, 758, 859 N.Y.S.2d 203 ; Furey v. Kraft, 27 A.D.3d 416, 417, 812 N.Y.S.2d 590 ). “Accordingly, ‘[a] physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure or that any departure was not a proximate cause of the plaintiff's injuries' ” ( DiGeronimo v. Fuchs, 101 A.D.3d 933, 936, 957 N.Y.S.2d 167, quoting Gillespie v. New York Hosp. Queens, 96 A.D.3d 901, 902, 947 N.Y.S.2d 148 ; see Fink v. DeAngelis, 117 A.D.3d 894, 986 N.Y.S.2d 212 ; Garrett v. University Assoc. in Obstetrics & Gynecology, P.C., 95 A.D.3d 823, 825, 944 N.Y.S.2d 197 ; Faicco v. Golub, 91 A.D.3d at 818, 938 N.Y.S.2d 105 ; Stukas v. Streiter, 83 A.D.3d 18, 24, 918 N.Y.S.2d 176 ). Once a defendant physician has established a prima facie case for summary judgment, the burden then shifts to the plaintiff to demonstrate the existence of a triable issue of fact (see Savage v. Quinn, 91 A.D.3d 748, 750, 937 N.Y.S.2d 265 ). In determining whether a triable issue of fact exists, the evidence must be reviewed in the light most favorable to the party opposing the motion (see Stukas v. Streiter, 83 A.D.3d 18, 918 N.Y.S.2d 176 ; Martinez v. Khaimov, 74 A.D.3d 1031, 906 N.Y.S.2d 274 ; Cerny v. Williams, 32 A.D.3d 881, 884, 822 N.Y.S.2d 548 ; see also Menzel v. Plotnick, 202 A.D.2d 558, 610 N.Y.S.2d 50 ; see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
Here, the defendants Nick G. Faraci, Linda DiToro, and Faraci, Faraci & DiToro, Physicians, P.C. (hereinafter collectively Faraci & DiToro) established their prima facie entitlement to judgment as a matter of law by submitting the parties' deposition testimony, the hospital records of the plaintiff, an infant, and the affirmation of a pediatric medical expert, who, after detailing the relevant medical facts with references to the records and deposition testimony, stated that Faraci & DiToro had not deviated from the relevant standard of care in their treatment of the plaintiff, and that their treatment was not a cause of the plaintiff's injuries.
In opposition, the plaintiff raised a triable issue of fact by submitting the affirmation of his pediatric medical expert, who opined that Faraci & DiToro deviated from the relevant standard of care by failing to timely assume responsibility, as attending physicians, for the care of the plaintiff after delivery, and the adequacy of that care, and that such deviation was a proximate cause of the plaintiff's injuries. Moreover, in opposition to Faraci & DiToro's motion, the defendant Staten Island University Hospital raised a triable issue of fact as to which physician had the responsibility of directing the care of the plaintiff in the hospital. Thus, the Supreme Court erred in awarding summary judgment to Faraci & DiToro.
The Supreme Court properly denied the cross motion of the defendant Michael A. Schirripa for summary judgment since he failed to establish “good cause” for his failure to cross-move within the 60–day time limit set by the Supreme Court for the making of motions or cross motions for summary judgment (CPLR 3212 [a]; see Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725, 726, 786 N.Y.S.2d 379, 819 N.E.2d 995 ; Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 ; Giuliano v. 666 Old Country Rd., LLC, 100 A.D.3d 960, 962, 954 N.Y.S.2d 215 ; Powers v. Sculco, 89 A.D.3d 1075, 933 N.Y.S.2d 602 ), and this was not a situation where the issues raised by Schirripa's untimely cross motion were nearly identical to the codefendants' timely motion for summary judgment (see Wernicki v. Knipper, 119 A.D.3d 775, 989 N.Y.S.2d 318 ; Giambona v. Hines, 104 A.D.3d 807, 961 N.Y.S.2d 519 ).