Opinion
16652 16628/05
01-14-2016
Victoria DAVID, etc., Plaintiff–Appellant, v. Narendralall PERSAUD, D.O., et al., Defendants, Philip Martin Hutchison, D.O., et al., Defendants–Respondents.
Irom, Wittels, Freund, Berne & Serra, P.C., Bronx (Richard W. Berne of counsel), for appellant. Garson & Jakub, LLP, New York (Susan M. McNamara of counsel), for Phillip Martin Hutchison, respondent. Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for St. Barnabas Hospital, respondent.
Irom, Wittels, Freund, Berne & Serra, P.C., Bronx (Richard W. Berne of counsel), for appellant.
Garson & Jakub, LLP, New York (Susan M. McNamara of counsel), for Phillip Martin Hutchison, respondent.
Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for St. Barnabas Hospital, respondent.
Opinion
Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about September 5, 2014, which granted defendant Philip Martin Hutchison, D.O.'s motion and St. Barnabas Hospital's cross motion to renew their motions for summary judgment, and upon renewal, dismissed the complaint, unanimously affirmed, without costs.
In this action for medical malpractice, plaintiff alleges, inter alia, that defendant Dr. Daniel Cerbone, an emergency room (ER) attending, and Dr. Philip Martin Hutchinson, a surgeon, failed to properly diagnose and treat a postoperative infection allegedly sustained by plaintiff's decedent during a January 18, 2003 ER visit at defendant St. Barnabas Hospital. Plaintiff alleges that complications from this infection led to decedent's death on February 9, 2004, more than one year later.
In 2013, the motion court denied all defendants' motions and cross motions for summary judgment dismissing the complaint. Dr. Cerbone appealed, and this Court reversed as to him on the ground that, inter alia, “plaintiff's expert failed to causally relate the alleged four-day delay in diagnosis and treatment of the postoperative infection and/or liver abscesses to decedent's death” (114 A.D.3d 412, 413, 980 N.Y.S.2d 38 1st Dept.2014 ).
The court properly applied the law of the case doctrine (J–Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey, 45 A.D.3d 809, 847 N.Y.S.2d 130 2d Dept.2007 ). Renewal of defendants' motion and cross motion for summary judgment was also proper, since dismissal of the complaint as against Dr. Cerbone constituted a change in the law (see CPLR 2221[e]2; Spierer v. Bloomingdale's, 59 A.D.3d 267, 873 N.Y.S.2d 66 1st Dept.2009, lv. denied 13 N.Y.3d 713, 2009 WL 4251021 2009; Engel v. Eichler, 300 A.D.2d 622, 623, 753 N.Y.S.2d 109 2nd Dept.2002 ). While plaintiff argued that the expert submissions constituted new evidence precluding application of law of the case (see Holloway v. Cha Cha Laundry, 97 A.D.2d 385, 386, 467 N.Y.S.2d 834 1st Dept.1983 ), her “renewal” arguments were based on information already known to her (see Keating v. Town of Burke, 105 A.D.3d 1127, 1128, 962 N.Y.S.2d 804 3rd Dept.2013 ), and were “nothing more than the [affirmation and affidavit] of newly retained experts” (Giberson v. Panter, 286 A.D.2d 217, 218, 729 N.Y.S.2d 29 1st Dept.2001, lv. denied 97 N.Y.2d 606, 738 N.Y.S.2d 289, 764 N.E.2d 393 2001 ); McDermott v. New York Hosp.-Cornell Med. Ctr., 42 A.D.3d 346, 346, 839 N.Y.S.2d 497 1st Dept.2007.