Opinion
869 CA 20-01412
10-08-2021
Janice COOKE, Individually and as Executor of the Estate of Robert Cooke, Plaintiff-Respondent, v. CORNING HOSPITAL, Guthrie Medical Group, P.C., James Perle, M.D., and Gurpreet Singh, M.D., Defendants-Appellants.
SMITH SOVIK KENDRICK & SUGNET, P.C., SYRACUSE (ANTHONY R. BRIGHTON OF COUNSEL), FOR DEFENDANTS-APPELLANTS CORNING HOSPITAL, GUTHRIE MEDICAL GROUP, P.C. AND JAMES PERLE, M.D. GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (AMANDA C. ROSSI OF COUNSEL), FOR DEFENDANT-APPELLANT GURPREET SINGH, M.D. DEFRANCISCO & FALGIATANO, LLP, SYRACUSE (CHARLES L. FALGIATANO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
SMITH SOVIK KENDRICK & SUGNET, P.C., SYRACUSE (ANTHONY R. BRIGHTON OF COUNSEL), FOR DEFENDANTS-APPELLANTS CORNING HOSPITAL, GUTHRIE MEDICAL GROUP, P.C. AND JAMES PERLE, M.D.
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (AMANDA C. ROSSI OF COUNSEL), FOR DEFENDANT-APPELLANT GURPREET SINGH, M.D.
DEFRANCISCO & FALGIATANO, LLP, SYRACUSE (CHARLES L. FALGIATANO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for medical malpractice and wrongful death arising from the death of her husband. Following discovery, defendant Gurpreet Singh, M.D. moved for summary judgment dismissing the complaint and all cross claims against him, and defendants Corning Hospital, Guthrie Medical Group, P.C., and James Perle, M.D. moved for summary judgment dismissing the complaint against them. Supreme Court denied the motions, concluding that the opposing affidavit from plaintiff's medical expert raised triable issues of fact. Defendants appeal, and we now affirm.
"It is well settled that a defendant moving for summary judgment in a medical malpractice action has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" ( Bubar v. Brodman , 177 A.D.3d 1358, 1359, 111 N.Y.S.3d 483 [4th Dept. 2019] [internal quotation marks omitted]; see Fargnoli v. Warfel , 186 A.D.3d 1004, 1005, 129 N.Y.S.3d 223 [4th Dept. 2020] ). Once such a defendant meets the initial burden, the burden shifts to the plaintiff to raise a triable issue of fact, but "only as to the elements on which the defendant met the prima facie burden" ( Bubar , 177 A.D.3d at 1359, 111 N.Y.S.3d 483 [internal quotation marks omitted]; see Bristol v. Bunn , 189 A.D.3d 2114, 2116, 138 N.Y.S.3d 774 [4th Dept. 2020] ).
Although there is no dispute that defendants met their initial burden on their respective motions, we reject defendants’ contention that the court erred in determining that the affidavit of plaintiff's expert raised triable issues of fact sufficient to defeat the motions. Where, as here, "a nonmovant's expert affidavit ‘squarely opposes’ the affirmation[s] of the moving parties’ expert[s], the result is ‘a classic battle of the experts that is properly left to a jury for resolution’ " ( Mason v. Adhikary , 159 A.D.3d 1438, 1439, 73 N.Y.S.3d 691 [4th Dept. 2018] ). "In determining a summary judgment motion, ‘[i]ssue-finding, rather than issue-determination, is the key to the procedure’ " ( Wilk v. James , 107 A.D.3d 1480, 1485-1486, 967 N.Y.S.2d 259 [4th Dept. 2013] ; see Sillman v. Twentieth Century-Fox Film Corp. , 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957], rearg denied 3 N.Y.2d 941, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [1957] ), and we decline to determine the issues identified by plaintiff's expert.
Contrary to defendants’ contentions, this is not a case in which plaintiff's expert "misstate[d] the facts in the record," nor is the affidavit " ‘vague, conclusory, speculative, [or] unsupported by the medical evidence in the record’ " ( Occhino v. Fan , 151 A.D.3d 1870, 1871, 57 N.Y.S.3d 325 [4th Dept. 2017] ; see generally Diaz v. New York Downtown Hosp. , 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002] ). Moreover, " ‘[t]he probative force of an opinion is not to be defeated by semantics if it is reasonably apparent that the doctor intends to signify a probability supported by some rational basis’ " ( Nowelle B. v. Hamilton Med., Inc. , 177 A.D.3d 1256, 1258, 110 N.Y.S.3d 475 [4th Dept. 2019], quoting Matter of Miller v. National Cabinet Co. , 8 N.Y.2d 277, 282, 204 N.Y.S.2d 129, 168 N.E.2d 811 [1960], mot to amend remittitur granted 8 N.Y.2d 1100, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [1960] ).