Decided October 4, 2005.
Pursuant to CPLR 2221, defendant Douglass Heymann, M.D. ("Dr. Heymann") moves for renewal and reargument of plaintiff's cross-motion for summary judgment, which was granted in a Decision and Order dated July 6, 2005. Plaintiff Christopher Faas ("Mr. Faas") opposes the motion.
On October 11, 2001, Mr. Faas presented to defendant Lenox Hill Hospital ("Lenox Hill") for laparoscopic surgery, which was performed by Dr. Heymann with the assistance of a resident, Ginger Isom-Batz, M.D. ("Dr. Isom-Batz"). Affirmation in Support of Motion ("Aff."), at ¶ 3. During the procedure, a surgical needle became detached from a suture and fell into Mr. Faas's abdomen. Id. A search for the needle proved unsuccessful. Id.
In this medical malpractice action commenced on January 30, 2003, Mr. Faas claims that Dr. Heymann failed to appropriately safeguard against the loss of instruments intra-operatively and negligently delayed in discovering the missing needle, which proximately caused the needle to become lodged behind his liver. Aff., at ¶ 5.
On February 4, 2005, Lenox Hill, Joseph C. Iraci, M.D. ("Dr. Iraci") and Dr. Isom-Batz moved for summary judgment, arguing that they did not depart from accepted standards of medical care in treating Mr. Faas. Aff., at ¶ 8. On July 6, 2005, Mr. Faas discontinued as against Dr. Isom-Batz and the Court denied summary judgment as to Lenox Hill. Id. Plaintiff also cross-moved for summary judgment, arguing that Dr. Heymann committed medical malpractice as a matter of law. Id. The Court granted plaintiff's motion on July 6, 2005 because Mr. Faas submitted expert evidence demonstrating that Dr. Heymann departed from accepted standards of medical care by leaving a needle in him and, in response, Dr. Heymann submitted no expert evidence sufficient to create a triable issue apart from his own affidavit, in which he did not opine that he comported with accepted standards of medical care or committed no departures. Aff., at ¶ 10.
Dr. Heymann now moves for renewal and reargument of plaintiff's cross-motion for summary judgment, arguing that plaintiff's expert affirmation was insufficient to demonstrate that Dr. Heymann departed from accepted standards of medical care in treating Mr. Faas. Aff., at ¶ 20. In particular, Dr. Heymann claims that plaintiff's expert, an internist, was unqualified to render an opinion about laparoscopic surgery and did not state familiarity with the standard of care. Aff., at ¶¶ 25, 26. Dr. Heymann also avers that his affidavit, submitted in opposition to plaintiff's motion, was sufficient to demonstrate a triable issue of fact. Aff., at ¶ 29. Finally, Dr. Heymann states that failure to remove a foreign object does not constitute negligence per se in New York. Aff., at ¶ 44.
In support of his motion, Dr. Heymann submits the affirmation of Subhash Kini, M.D. ("Dr. Kini"), a physician board-certified in surgery, who opines to a reasonable degree of medical certainty, after review of all the medical records and testimony in this case, that Dr. Heymann did not depart from accepted standards of medical care in treating Mr. Faas. Aff., Ex. H, at ¶¶ 3, 4. In particular, Dr. Kini concludes that the loss of the needle did not constitute a departure by Dr. Heymann. Aff., Ex. H, at ¶ 11. He reasons that "there were no additional measures or safeguards which could have been taken to avoid the separation of the needle from the suture." Aff., Ex. H, at ¶ 11. Furthermore, he opines that Dr. Heymann appropriately searched Mr. Faas's abdomen for the needle. Aff., Ex. H, at ¶ 12. In opposition to Dr. Heymann's motion, plaintiff argues that Dr. Kini's affidavit was obtainable and should have been submitted in response to the underlying cross-motion, and thus, cannot be considered by the Court on renewal. Affirmation in Opposition ("Opp."), at ¶ 4. Mr. Faas also claims that the Court did not misapprehend or overlook any law warranting reargument. Opp., at ¶ 8. Specifically, he asserts that his expert affirmation from an internist, as opposed to a surgeon, was sufficient to demonstrate prima facie entitlement to judgment as a matter of law. Id.
Pursuant to CPLR 2221, a party may move to reargue a motion upon demonstrating that the court "overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law." Foley v. Roche, 68 AD2d 558, 567 (1st Dept. 1979). Nonetheless, reargument is not designed to afford an unsuccessful party the opportunity to re-litigate issues already decided or present new arguments. William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22, 27 (1st Dept. 1992), lv. denied 81 NY2d 782 (1993); Pro Brokerage, Inc. v. Home Ins. Co., 99 AD2d 971 (1st Dept. 1984); 300 West Realty Co. v. City of New York, 99 AD2d 708, 709 (1st Dept. 1984).
Dr. Heymann's motion to reargue must be denied. He has not demonstrated that the Court overlooked or misapprehended anything. He merely sets forth the same arguments that he raised in the prior motion, namely, that failure to remove a surgical needle cannot constitute negligence per se and that plaintiff's expert affirmation is insufficient to establish negligence as a matter of law because the expert is an internist, not a surgeon.
The Court carefully considered and rejected these arguments in its previous Decision and Order.
Furthermore, even if this Court were to again consider Dr. Heymann's arguments, the outcome would be the same. The cases he cites are plainly inapposite. For example, Dr. Heymann cites Suib v. Keller, 6 AD3d 805 (3rd Dept. 2004), for the proposition that the affidavit of a defendant here, Dr. Heymann is admissible on a motion for summary judgment. In Suib, defendant submitted a particularized affidavit that detailed his treatment of plaintiff over several years and concluded that he did not depart from accepted standards of medical care in treating plaintiff. The court held that the "affidavit of a defendant physician may be sufficient to establish a prima facie entitlement to summary judgment where the affidavit is detailed, specific and factual and does not assert in simple conclusory form that the physician acted within the accepted standards of care." Id., at 806 (emphasis added). Dr. Heymann's affidavit submitted in opposition to plaintiff's cross-motion for summary judgment, however, was neither detailed nor specific. It did not establish that he comported with accepted standards of care. Thus, it was insufficient to defeat summary judgment.
Likewise, Cerasuoli v. Brevetti, 166 AD2d 403 (2nd Dept. 1990) is equally distinguishable. In Cerasuoli, both plaintiff and defendant presented expert evidence at trial: plaintiff's expert averred that defendant departed from accepted standards of care in leaving a needle in plaintiff's abdomen and defendant's expert opined that the needle in plaintiff's abdomen came from another source. In light of the difference in expert opinions, the court held that the jury could reasonably find in favor of the defendant. Id., at 404.
Here, in contrast, there is no question as to the source of the needle or that it fell into Mr. Faas's abdomen while he was being treated by Dr. Heymann. Furthermore, unlike defendant in Cerasuoli, Dr. Heymann did not submit a sufficient expert affirmation in opposition to plaintiff's showing of entitlement to judgment. See also, Benson v. Dean, 232 NY 52 (1921) (upholding jury verdict for defendant because plaintiff submitted no expert evidence to prove that defendant's loss of a needle in plaintiff's rectum constituted negligence). As such, the cases cited are wholly inapplicable to this case.
Dr. Heymann also moves to renew the Court's prior motion.
A motion to renew is intended to draw the court's attention to new or additional facts which, although in existence at the time of the original motion, were unknown to the party seeking renewal and therefore not brought to the court's attention. Amankwa v. New York City Housing Auth., 224 AD2d 262 (1st Dept. 1996); United States Life Ins. Co. v. John J. Burke Assoc., 162 AD2d 112 (1st Dept. 1990); Beiny v. Wynyard, 132 AD2d 190 (1st Dept. 1987), lv. dismissed 71 NY2d 994 (1988).
Under proper circumstances, however, courts have discretion to grant renewal based on facts known to the movant at the time of the underlying motion. Framapac Delicatessen, Inc. v. Aetna Cas. and Sur. Co., 249 AD2d 36 (1st Dept. 1998); Morales v. City of New York, 172 AD2d 430 (1st Dept. 1991). Indeed, the First Department has repeatedly affirmed courts that renewed motions in cases in which attorneys left out necessary affidavits, certificates or offers of proof even though they were available at the time of the original motion. See, e.g., Trinidad v. Lantigua, 2 AD3d 163 (1st Dept. 2003) (affirming Bransten, J.); Martinez v. Hudson Armored Car Courier, Inc., 201 AD2d 359 (1st Dept. 1994); Pinto v. Pinto, 120 AD2d 337 (1st Dept. 1986); see also, Strong v. Brookhaven Mem. Hosp., 240 AD2d 726 (2nd Dept. 1997) ("While it is generally true that a motion to renew must be based on newly-discovered facts, courts have discretion to grant this relief in the interest of justice, although not all requirements for renewal are met").
Here, Mr. Faas first moved for summary judgment on March 3, 2005. Aff., Ex. B, at 1. This Court denied that motion on July 6, 2005 because, in response to Mr. Fass's showing, Dr. Heymann failed to prove that he properly operated on Mr. Faas and was not liable for the loss of the needle during surgery. In opposition to the original motion, Dr. Heymann submitted only his own affidavit, which was insufficient to defeat plaintiff's motion for summary judgment because Dr. Heymann did not opine that he comported with appropriate standards of care in treating Mr. Faas. Aff., Ex. F, at ¶ 13.
Now, Dr. Heymann belatedly submits the affirmation of Dr. Kini who concludes that Dr. Heymann did not depart from accepted standards of medical care in treating Mr. Faas. Regardless of whether Dr. Kini was available at the time of the underlying motion, this Court will consider the newly submitted evidence. Clearly, Dr. Heymann's failure to submit the evidence earlier was an oversight based on unjustified confidence in the strength of his own affidavit. In the interests of justice having the case decided on its merits the Court will permit renewal.
Summary judgment is a "drastic remedy" that should not be granted if there is any doubt as to the existence of a triable issue. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978); see also Greenidge v. HRH Constr. Corp., 279 AD2d 400, 403 (1st Dept. 2001); DuLuc v. Resnick, 224 AD2d 210, 211 (1st Dept. 1996). Indeed, because summary disposition serves to deprive a party of its day in court, relief should not be granted if an issue of fact is even "arguable." Henderson v. City of New York, 178 AD2d 129, 130 (1st Dept. 1991).
Further, on a motion for summary judgment that is opposed, the court is required to accept the opponent's pleadings as true, and its decision must be made "on the version of the facts most favorable to [the opponent]." See, Byrnes v. Scott, 175 AD2d 786, 786 (1st Dept. 1991).
The proponent of a summary judgment motion has the burden of making a prima facie showing of entitlement to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). Once the movant has made this showing, the burden then shifts to the opponent of summary judgment to establish, through competent evidence, that there is a material issue of fact that warrants a trial. Alvarez v. Prospect Hosp., 68 NY2d, at 324.
If the non-movant submits an admissible affidavit from a competent expert showing the existence of a triable issue of fact as to whether defendants were negligent, the summary judgment motion must be denied. See, Cooper v. St. Vincent's Hosp., 290 AD2d 358 (1st Dept. 2002); Dellert v. Kramer, 280 AD2d 438 (1st Dept. 2001); Morrison v. Altman, 278 AD2d 135 (1st Dept. 2000); Avacato v. Mount Sinai Med. Ctr., 277 AD2d 32 (1st Dept. 2000).
Here, both parties have submitted evidence sufficient to support their respective positions. The parties' submissions make clear that there is a material issue of fact to be tried, namely, whether Dr. Heymann negligently lost a surgical needle in Mr. Faas's abdomen. Plaintiff submitted evidence demonstrating that Dr. Heymann departed from accepted medical practice. Dr. Kini, by contrast, insists that Dr. Heymann did not depart from accepted standards of care in treating Mr. Faas. The issue of which expert is correct is for the jury to decide after a trial. Santiago v. Brandeis, 309 AD2d 621 (1st Dept. 2003). This Court cannot hold as a matter of law that Mr. Faas definitively established that there was no malpractice.
Accordingly, it is
ORDERED that Dr. Heymann's motion for reargument is denied; and is further
ORDERED that Dr. Heymann's motion for renewal is granted; and it is further
ORDERED that the Court's Order of July 6, 2005 is vacated and plaintiff's cross-motion for summary judgment is denied.
This constitutes the Decision and Order of the Court.